Easter bunnies are even more popular among Germans than chocolate Santas and Santa Clauses: According to the Federal Association of the Confectionery Industry, more than 130 million chocolate bunnies were sold in Germany this year.
The market leader is the Swiss company Lindt
The 29th civil senate must examine whether a competitor sued by Lindt – the Allgäuer Confiserie Heilemann, which belongs to Thuringia’s Viba sweets – has violated the trademark rights of the “Lindt Gold Bunny”. Specifically, it is about the gold tone of the two foils used and the possible risk of confusion. The BGH has already decided that the gold tone used by Lindt enjoys trademark protection – contrary to a previous OLG ruling.
In the 2018 Easter season, Heilemann also sold a sitting chocolate bunny in gold-colored foil. The traditional Swiss group is demanding that its competitor no longer sell its gold rabbit and provide information about its business with a view to compensation.
Dispute over a gold tone
In 2019, the district court in Munich ruled in favor of Lindt: the gold color of the chocolate bunny had become a color brand through long use and intensive advertising. In 2020, the Higher Regional Court dismissed the lawsuit as unfounded. Unlike “Nivea Blue”, “Telekom Magenta” or “Milka Purple”, the gold tone does not unequivocally belong to Lindt. The chocolate manufacturer also has other colored products in its range.
On the other hand, the BGH decided in the last instance that the color of the “golden rabbit” is so well known that it enjoys trademark protection. The color is attributed to the Swiss chocolatier by 70 percent of consumers. Due to its long and intensive use on the market, it asserted itself as a trademark and “gained public recognition”.
The fact that Lindt does not use the gold for all its products and that the “gold bunny” has other characteristic features such as the red collar with a bell is irrelevant. The judges in Karlsruhe referred the case back to the Munich Higher Regional Court for a new hearing and decision.
Similar competing products
According to Lindt, it now produces around 150 million “Golden Bunnies” every year in over 50 countries. For years, Lindt has defended itself against competing products that are too similar. The golden chocolate bunnies from the Franconian chocolate producer Riegelein were allowed to stay after two BGH rulings.
Four weeks ago, the Swiss Federal Court in Lausanne decided that the discounter Lidl was no longer allowed to sell its gold bunnies in Switzerland because of the risk of confusion with Lindt’s gold bunnies.
