It is a question that few intellectual property lawyers probably grappled with in law school: can a chocolate bunny be trademarked? Yet it is at the heart of a long-running legal battle between Switzerland’s Lindt & Sprüngli, maker of the luxury Lindt chocolate brand, and an Austrian competitor.
The Swiss chocolatier began making chocolate rabbits — distinctive with their gold foil wrapping, red ribbon and bell — in the 1950s and produces millions a year. It trademarked the design in 2001 and has pursued smaller competitors across Europe, accusing them of copying its design.
Yesterday, the European Court of Justice (ECJ) was asked to consider whether Lindt had acted in “bad faith” when it registered its trademark. Hauswirth, a small Austrian chocolate maker that also produces a gold-wrapped chocolate rabbit, had challenged the validity of Lindt’s trademark, arguing that chocolate rabbits have been around for decades. It accused Lindt of using its dominant market position to kill competition.
Lindt took action against Hauswirth in 2004 and the case has been in the Austrian courts since. It was referred to the ECJ after the Austrian Supreme Court sought guidance on whether knowing, or being in a position to know, that a trademarked subject is similar to one being used by a rival constituted bad faith.
Yesterday, the ECJ said the Austrian court should take into account whether a company knew that others were producing similar goods when it applied for a trademark and whether it was seeking to push rivals out of the market. It did not give a specific opinion on whether Lindt’s trademark was obtained in bad faith. The Austrian courts will now decide.
Advertisement
In another chocolate-related case, Ferrero, maker of the Ferrero Rocher brand, was cleared by Mr Justice Briggs, in the High Court, of a €23 million (£19.5 million) fraud claim by international banks. Ferrero was accused of complicity in a Turkish supplier’s false invoice scam in 2001 and 2002.