The golden shade of the foil wrap on Lindt & Spruengli’s popular Gold Bunny enjoys protected status, a German federal court has ruled.
The Federal Court of Justice delivered its verdict in a battle between Switzerland’s Lindt and a German company, Heilemann, which in 2018 also marketed a chocolate bunny in a gold foil wrap.
Lindt argued that it had a trademark on the colour acquired by use, that its rival had infringed that trademark and that Heilemann should be prevented from selling its product.
A state court in Munich ruled against Lindt last year. But the federal court found the Swiss company had proven that the gold shade of its bunny had acquired trademark status by reputation, citing a survey presented by the manufacturer showing that 70% of respondents associated the hue with the Lindt product.
The court said it did not matter that the company did not use the gold colour for all or most of its products, or that the Lindt bunny has other distinguishing features, such as a red collar.
Lindt has sold its Gold Bunny in Germany since 1952, and the product has had its current gold shade since 1994.
It is by some distance the best-selling chocolate Easter bunny in Germany, with a market share over 40% in 2017, according to the court.
Federal judges sent the case back to Munich to determine whether Heilemann actually infringed on Lindt’s trademark.
What other headline-grabbing battles for protected status have there been?
Unlike Lindt, fellow confectionery brand Cadbury lost a fight to protect the purple shade it uses to wrap its products.
Cadbury was forced to relinquish its trademark after losing an appeal in 2019. It sought to block other chocolate companies using the shade, known as Pantone 2865c.
In 2018, the shape of Nestle’s four-finger KitKat bar lost its EU-wide protected trademark status.
“The familiar shape of our iconic four finger KitKat is distinctive enough to be registered as an EU trademark,” the company argued.
However, the European Court of Justice ruled Nestle had not proven KitKat was sufficiently well known in every EU country.
Away from chocolate, the Tees Valley mayor launched a campaign to win protected status for Teesside's famous parmo in 2017.
Mayor Ben Houchen attempted to secure Protected Designation of Origin (PDO) status for the dish, which consists of a flattened chicken breast dipped in egg and breadcrumbs, deep fried, and covered in béchamel sauce and melted cheese. A PDO applies to products, like Champagne or feta cheese, which must be produced, processed or prepared within a specific geographical area.
So far, the campaign has been unsuccessful, but an application for Traditional Speciality Guaranteed protected status, which highlights traditional aspects of a product, is being considered.