The German Federal Court of Justice has ruled that the golden shade of the foil wrap on Lindt & Spruengli’s Gold Bunny enjoys protected status.

Lindt has sold their gold bunny in Germany since 1952 and has some 40% share of the Easter bunny market. A German company, Heilemann, started marketing a chocolate bunny in a gold foil wrap in 2018.

Lindt has historically tried and failed to get comprehensive trademark protection for the shape of its Bunny so has, more recently, changed tactics seeking to protect the shade of the foil wrapping instead.

Lindt argued in court that it had legal rights in the golden shade as a ‘trademark’ acquired by use and reputation, that Heilemann had infringed those legal rights, and therefore, should be prevented from selling its product.
A state court in Munich ruled against Lindt last year but now the federal court has found that the Swiss company has proven that the golden shade of its bunny had acquired ‘trademark’ status by use and reputation. A survey carried out by Lindt showed that 70% of respondents associated the golden colour with the Lindt bunny.

The court found that it was irrelevant that the golden colour is not associated with other Lindt products nor that the Lindt bunny has other distinguishing features, like a red collar and bell.
The case has now been referred back to the state court to determine whether the Lindt legal rights in the golden colour have actually been infringed.

The laws of many countries provide for legal rights in aspects of the trading style of a business such as logos, names, colours, even sometimes product shapes. The rights are based on the use in business of the particular trading style. They are typically not as good a having a registered trade mark are usually tricky and expensive to enforce.

August 2021