by Jeff Nemesi

The Easter holiday has passed, and as always, with its passing comes a lot of chocolate. The holidays are a great time for candy products to increase sales by offering limited edition holiday goodies. Most candy companies incorporate Easter into their products around this time of year, with the most prevalent being the bunny. What if a company could take the idea of the chocolate bunny and restrict other companies from selling it to increase their sales? For over twelve years, Swiss premium chocolate maker Lindt & Spruengli has been trying to trademark these gold-wrapped chocolate bunnies with many court cases involving different European Union members.

In 2001, Lindt got a European trademark for these bunnies, and has been trying to attack other similar chocolate bunnies ever since. After losing a case in 2004 and 2008 to the European Union trademarks agency OHIM and then again in 2008 to the European Union General Court to make the gold-foiled chocolate bunny with red necktie registered as trademark in the European Union , Lindt brought it to the European Court of Justice arguing that fifteen out of twenty-five member states in the European Union already had it trademarked, representing over 75% of the population.  The European Court of Justice upheld the two previous decisions, citing a law saying that the bunny doesn’t differ from the norm or customs of the industry and therefore doesn’t have distinctive character. Among all of these losses there have been some victories. Lindt won a case in Austria to stop rival chocolate-maker Hauswirth from making any more bunnies that were like the original Lindt product. Bill Popielarz expands more on these cases in a 2009 globalEDGE blog post.

The most recent case, beginning in 2000, was against a German rival brought to Germany’s Federal Court of Justice. Confiserie Riegelein, a German rival of Lindt, has won the final appeal and will be allowed to produce the similar looking bunnies. Lindt will not be allowed to trademark its chocolate bunny in the European Union due to its lack of distinctive character. With the Easter Bunny being the character of the holiday, it isn’t fair to restrict such an iconic and basic figure with the common attributes it has to one producer.

The 3-D trademark industry offers a great incentive to businesses. It will be a smart way to erase competition and increase sales. For example, Apple has already gotten a trademark on the 3D shape of its iPod.  If Lindt were to obtain a European Union trademark on its bunnies, its sales would increase dramatically because at times like Easter, customers would have nowhere else to go but Lindt.  With the increase in 3-D technology around today, and the opportunity to print in 3-D right around the corner, getting a 3-D trademark is an incentive to increase sales for a company.  What are the positives/negatives of a 3-D trademark and how do you think it will develop in the future? Do you think Lindt deserves to receive a trademark on their chocolate bunnies?