The Easter bunny, wrapped in gold foil and with a bell on a red ribbon, is widely known. With a market share of 40% (2017), the Lindt “Gold Bunny” is by far the best-selling chocolate Easter bunny in Germany. Over 500 millions of them have been sold in the past 30 years. Is another manufacturer also allowed to wrap its bunnies in gold foil or not? In a judgement of 29 July 2021 (I ZR 139/20), the I. Civil Senate of the Federal Court of Justice, which is responsible among other things for trademark law, has now ruled that the gold shade of the “Lindt Gold Bunny” (in German), which has been offered in Germany in gold foil since 1952 and in the current gold shade since 1994, enjoys trademark protection. The Swiss manufacturer Lindt & Sprüngli had proved that far more than the required 50% of potential buyers associated the gold with Lindt; in surveys conducted by the company, the figure was as high as 70%. This meant that the colour had established itself as a so-called use mark.
According to this ruling, the fact that Lindt does not use gold as the house colour for all its products is irrelevant, nor is the fact that the bunny can still be recognised by other characteristic features such as the red collar with little bells. The decisive factor is whether there is a risk of confusion with other golden chocolate Easter bunnies. This depends on other characteristics in addition to the shade of gold. Therefore, the BGH’s ruling does not yet mean that the sued competitor, the Swabian confectioner Heilemann, may not also market a chocolate bunny in gold foil. Heilemann had also sold a sitting chocolate bunny in a gold-coloured foil around Easter 2018.
The case was referred back to the Munich Higher Regional Court by the BGH, which now has to examine whether Heilemann actually infringes the Lindt trademark because there is a likelihood of confusion between the two bunnies. According to the Süddeutsche Zeitung (in German), Lindt also registered the colour mark “gold (Pantone Premium Metallics coated 10126 C)” with the German Patent and Trademark Office for chocolate bunnies in May 2017. Confiserie Heilemann has applied for cancellation, and these proceedings were most recently before the Federal Patent Court.
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