In a move sure to upset chocolate addicts everywhere, discount supermarket Lidl was recently asked to destroy its stockpile of chocolate bunnies. A Swiss court ordered the death penalty and determined that Led’s rabbit was very close to the famous chocolate rabbit Lindt.
Lidl was sued by Swiss confectioner Lindt & Sprüngli for selling a golden, chocolate-wrapped rabbit that Lindt felt looked very similar to her own product. Swiss Federal Supreme Court Rule Lindt Gold Bunny is a valid registered trademark of “Shape”. As such, other companies can now be prevented from repeating this format when selling chocolate products in Switzerland.
Lindt has been selling a milk chocolate rabbit wrapped in gold foil with a red ribbon and a bell around its neck since 1952. It has registered two 3D brands of the product in Switzerland, one in black and white and the other in gold, red-brown.
This issue hinges on the distinctiveness of the shape of Lindt’s rabbits. European says the law That companies can only trademark something – thus protecting it from imitation – if it allows consumers to distinguish a particular product from those of competitors.
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But Liddell said the shape of Lindt’s rabbits is common and uncharacteristic, so it should not qualify for registration. Swiss court based its decision Lindt’s rabbit shape is a valid brand in consumer surveys that show shoppers unequivocally associate this shape with Lindt.
This isn’t the first time that Lindt’s rabbit has ended up in court. Heilemann, a competitor in Germany, started selling golden rabbits in 2018 causing Swiss chocolate production File a claim for trademark infringement.
Lindt’s strategy was a little different in this case, as she focused on protecting the color of the packaging rather than its shape. She claimed that the specific gold shade of the foil wrapping was distinctive enough to be protected as a trademark in relation to the chocolate bunnies.
German court agreedBased again on a consumer survey, 70% of respondents said the shade of gold in question calls Lindt products to mind. The court took into account Lindt’s extensive and successful use of this shade and its acquired distinctive character.
However, Lindt’s rabbit was not always on top. Earlier 2012 Rule by the highest court in Europe have found That combining the shape and colors of the Lindt Gold Bunny (including the folded red ribbon and the attached bell) wasn’t different enough from the way other chocolate products were packaged, especially bunnies, to warrant an EU brand.
The shape of things to come
Brand disputes over the look of products occur frequently. Despite this, in many cases courts find shapes so commonly used in a particular market that they cannot be protected as trademarks.
Kit Kat bars, for example, have been the subject of efforts by food producer Nestlé to brand their three-dimensional, four-finger shape. In the UK, confectioner Cadbury challenged this attempt, claiming the look worked lack Distinctive character. similar resolution It was accessed by European courts.
Even beverage giant Coca-Cola failed to register a recent Coke update bottle Because the shape did not make a clear and unambiguous impression of his association exclusively with the American beverage giant. naturally , The original Coca-Cola bottle It is widely associated with the beverage company and is therefore already registered as a trademark in many countries.
Its attempt to trademark an updated version of plastic, metal, and glass was rejected in 2014. EU courts said the new version was “devoid of any distinctive character” and not, as Coca-Cola attempted, “a natural evolution of its ‘popular iconic bottle’ (pictured below). ).
Obviously, this does not mean that product forms are difficult to protect. Many are registered in different countries.
For example, the hierarchical form of TobleroneIt is believed to be a replica of the Alps Matterhorn, is a trademark registered in various jurisdictions and owned by the Mondelez Corporation of America. This was implemented in the UK several years ago when a competitor launched a similarly shaped bar of chocolate called Twin Peaks.
The familiar form of Ferrero Rocher Chocolate candy candies and four of its types of transparent packaging have also been successfully registered as trademarks in many countries. This is because the shape is well known to consumers (again, surveys revealed) and the company has a file long history Using pictures of these items to distinguish their products.
Unmarked shapes usually cannot be registered as trademarks because the law needs to protect the right of all companies to use common shapes. Marks and symbols that help consumers to identify products can only be registered and thus monopolized by one company.
On the other hand, forms that have been used regularly and for a long time by a variety of manufacturers should not be protected because they do nothing to help people make informed purchasing choices.
Also, the monopoly offered to trademark owners can be permanent. Registrations can be renewed every 10 years as long as fees are paid. So, the ability to forever monopolize popular product forms like chocolate rabbits can have a negative and lasting impact on competition, although decisions can be subject to legal challenge.
Trademark disputes over product forms will continue to occur, and courts should continue to use consumer surveys to make decisions about who, if any, owns certain forms of products. As we have seen, this will not prevent judges from different jurisdictions from reaching different decisions on the same issues, but it will at least keep consumer protections in mind when making these rulings.
Enrico Bonadio is Reader in Intellectual Property Law at City, University of London and Alina Trapova is Assistant Professor of Independent Law and Regulations at the University of Nottingham.
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