03/10/2022
In Lindt’s latest instalment of their battle to protect third parties from retailing chocolate products which have a similar look to their golden bunny, they have succeeded in proceedings against Lidl before the Federal Supreme Court of Switzerland.
Lindt has been selling its golden foil wrapped chocolate bunnies since 1952. They have been involved in numerous tussles to prevent perceived third-party infringement. The present case involving Lidl commenced in 2017 when Lindt filed a claim with the Swiss Commercial Court against Lidl to prevent their sale of their version of the bunny:
Lindt argued that Lidl’s sales of their product should be prevented under Swiss trade mark law due to the confusing similarity between their following trade mark registrations and Lidl’s product:
The initial case with the Commercial Court was dismissed but the decision was appealed by Lindt to the Swiss Supreme Court. Lindt persisted with the argument that Lidl’s bunnies resemble the features of their own bunnies, making it likely that consumers would confuse the two products. Lindt supplemented their claim by producing survey evidence about the two products.
Basing their decision partially on the survey evidence conducted by Lindt, the Supreme Court overseeing the appeal overturned the Commercial Court’s decision. According to the Supreme Court, there is a risk of confusion between the two bunnies, even if there are some evident differences between the two.
The Supreme Court’s press release suggests that whilst Lidl’s products in their current form will have to be destroyed, “this does not necessarily mean that the chocolate as such has to be destroyed.” It appears therefore that Lidl will have their hands full ahead of Easter melting and refashioning their products.
Aside from demonstrating Lindt’s continued determination to aggressively protect the intellectual property rights which reside in their bunny product, it also demonstrates the contentious and complex nature of trade mark rights in 3D shapes, regardless of the territory concerned.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
