If one was to compile a list of perennial trade mark disputes, the "Gold bunny" or "Easter Bunny" cases would certainly feature prominently.
It is therefore not much of a surprise that we have yet another chapter to report. The IPKat's good friend and fellow blogger of 1709 fame Monika Bruss (Goethe University Frankfurt) has sent in the following report on the latest round of proceedings at the Higher Regional Court of Frankfurt (OLG Frankfurt) between Swiss chocolate maker Lindt & Sprüngli and its German competitor Confiserie Riegelein .... :
"... over their respective chocolate bunnies wrapped in gold-coloured foil. On 27 October, the OLG Frankfurt for the third time (!) denied Lindt’s appeal against Regional Court of Frankfurt’s decision not to issue an injunction against Riegelein.
On 15 July 2010, the BGH had reversed and remanded an earlier judgment by OLG Frankfurt, mainly because the Riegelein chocolate bunny submitted in evidence was missing from the files – whether it had hopped off to join the other bunnies in the Bunniesgerichtshof courtyard or been eaten by a hungry judge remains unknown. IPKat comment: please see here and here for IPkat and Marques Class 46 reports on this bizarre event.
Another quibble the BGH had was that the results of a consumer survey had not been evaluated properly. A sitting Lindt bunny wrapped in gold-coloured foil, but without any markings, writing or the famous red ribbon and golden bell, was presumed by the majority of consumers to originate with Lindt & Sprüngli. While OLG Frankfurt held that the distinctive character of the Lindt bunny was partly due to its shape and colour, it also held that the additional features of the two chocolate bunnies were quite different and the overall result was that there was no likelihood of confusion.
In the latest proceedings, it appears that a ‘naked’ Riegelein bunny was shown to consumers in a street survey, 60% of which thought the it was a Lindt bunny. Nevertheless, Lindt’s attempts to thwart Riegelein’s activities were (gold-)foiled by the OLG judges. Apparently Lindt applied for an injunction enjoining Riegelein to cease and desist from distributing their bunny in Germany, but in the oral proceedings the presiding judge expressed the opinion that since the Lindt bunny was protected by a Community Trademark that could not be restricted to a certain territory within the European Union, the application might be procedurally inadmissible."
Many thanks to Monika for painstakingly compiling this information from the various reports available in the German media (see here, here, here and here). Unfortunately the OLG Frankfurt has so far not issued any press release or provided us with any official reports concerning this case. Looking at the German media reports however there is some speculation that this matter may yet again go all the way to the Bundesgerichtshof should Lindt decide appeal. Or as Monkia has put it "maybe we shall be presented with a final decision by the BGH sometime next year, possibly as an Easter egg... " Merpel can't help but wondering whether the lost Easter bunny might then also reappear?
A press release issued by Riegelein can be found here. If any of our readers can find a press release by Lindt, please let the Kats know and we will post a link here too.