3 October 2022TrademarksStaff Writer

Lindt secures chocolate victory at home

This latest ruling overturns a Swiss court’s finding against Lindt last year | Chocolate bunny was found to be well known to the public.

In a win for Swiss chocolatier Lindt & Spruengli, Switzerland’s highest court has ordered German retailer Lidl to destroy its remaining stock of foil-wrapped chocolate bunnies.

The ruling, handed down yesterday, 29 September, ordered Lidl to stop selling the copycat product due to the risk of confusion and to destroy its remaining stock.

Lindt’s chocolate bunny—which is wrapped in gold foil and has a red ribbon with a gold bell—was found to be well known to the public and so Lindt’s two 3D shape marks were established in the market.

The court’s ruling overturns a Swiss commercial court’s finding against Lindt last year.

In late 2018, Lindt brought proceedings against two  Lidl companies, seeking to stop the retailer from promoting, offering or selling its chocolate bunny wrapped in gold foil (or any other colour) and to destroy any Lidl bunnies still in stock.

According to the chocolatier, Lidl’s chocolate bunnies infringed its registered trademarks as they were very similar in shape and appearance and could be mistaken for Lindt’s bunnies.

Now, the Federal Court has concluded that there is a likelihood of confusion between Lindt’s and Lidl’s chocolate bunnies, despite the differences between them.

“Given the overall impression produced, Lidl's rabbits evoke obvious associations with the shape of Lindt's rabbit; in the mind of the public they cannot be distinguished. The ban requested by Lindt & Sprüngli against Lidl was therefore upheld,” said a summary of the decision (translated).

According to the court, the destruction of the remaining stock is proportionate as it “does not necessarily mean that the chocolate as such must be destroyed”.

In July last year, the German Federal Court of Justice ruled that Lindt could trademark the gold foil wrapping of its chocolate bunnies.

According to Mark Kramer, partner at European IP law firm, Potter Clarkson, Lindt had recognised the value of its iconic gold bunny early in the game and this is now paying dividends.

“IP protection won’t necessarily eliminate copycats or keep you out of the courts, but it provides the necessary tools to stop competitors in their tracks as we’ve seen here with the might of Lindt’s rights forcing Lidl to melt its entire stock of chocolate bunnies, he explained.

“The outcome of this case underlines a best practice approach to trade mark protection, where we have seen Lindt carefully building its rights over time. Protection for the shape of the bunny was secured as early as 2001 and a trade mark for the distinctive gold foil wrapper was registered just last year.

Lindt, he added, has understood the significance of timing when it comes to securing rights – go too early and you won’t have established distinctiveness and leaving it too late will have left the door wide open for competitor products to establish market share.

“We saw the impact of having weaker IP rights with Marks & Spencer’s Colin the Caterpillar cake, which ultimately saw Aldi and others take a sizeable bite out of their market share.”

Commenting on the decision, a Lidl spokesperson said: “To confirm, the judgment only refers to Lidl in Switzerland and does not apply to Lidl GB, which operates as a separate entity.”

In a statement, the chocolatier said that the Federal Supreme Cour had concluded that "the copies offered by Lidl, despite some differences, strongly and misleadingly resembled the Lindt Gold Bunny and that there was a likelihood of confusion".

“Because of their similar overall impression, the Lidl bunnies triggered associations with the shape of the Lindt Gold Bunny and could not be distinguished by the consumers.

The ruling, said Lindt, is of great importance for the protection of the Lindt Gold Bunny on the Swiss market. "It will help to further protect the iconic form of the Lindt Gold Bunny against dilution from unauthorized copies and will likely serve as a precedent also in other countries."

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More on this story

30 July 2021   The German Federal Court of Justice has ruled that Swiss chocolatier Lindt & Sprüngli can trademark the gold foil wrapping of its chocolate bunnies.
24 September 2015   Chocolate maker Lindt & Sprüngli has defeated German confectionery company Haribo in a trademark dispute surrounding gold bears.