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Backing Lindt, Swiss Court Orders Lidl to ‘Destroy’ Its Chocolate Bunnies

todayOctober 1, 2022 2

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The face-off pitted two chocolate bunnies against one another and only one, it seemed, could survive.

In one corner was the chocolate bunny wrapped in gold foil and made by the German discount retailer Lidl. In the other corner was the chocolate bunny, also wrapped in gold foil, but made by the venerable Swiss chocolatier Lindt and Sprüngli.

After a yearslong legal battle, the Federal Supreme Court of Switzerland sided with Lindt and found that Lidl’s chocolate bunnies could be confused with Lindt’s chocolate bunnies, which are protected under Swiss trademark law.

As a result, the court decreed that Lidl can no longer sell its bunnies in Switzerland and “must destroy” the chocolate bunnies it still has in stock, according to a statement from the court.

Credit…Christoph Gasser

The ruling was a victory for Lindt’s confectionary hares in a country internationally known for its premium chocolates. It raised questions about whether Lidl’s banned bunnies could be melted down and formed into less offensive shapes.

The court’s statement seemed to suggest the bunnies could be melted and reused, saying that while Lidl had to destroy its bunnies, “this does not necessarily mean that the chocolate as such has to be destroyed.”

Lidl said in a statement that no bunnies would have to be discarded.

“The chocolate bunny in question is a seasonal item, which is why we currently have no stocks in Switzerland that need to be destroyed,” Lidl’s statement said.

Christoph Gasser, a lawyer for Lidl, said that the Supreme Court had returned the case to a lower court for further review, in particular to evaluate whether Lindt may be entitled to monetary compensation.

“In essence, it appears as if the Swiss Federal Supreme Court had adopted a result-oriented approach in its legal reasoning, trying to protect Lindt’s Easter bunny, despite some significant departures from prior case law,” he wrote in an email. “While we accept the Swiss Federal Supreme Court’s decision, we feel that it has done a disservice to Swiss intellectual property law.”

Lindt praised the ruling, saying it would safeguard its “Gold Bunny,” which it has been making since 1952.

“The ruling of the federal court is of great importance for the protection of the Lindt Gold Bunny on the Swiss market,” the company said in a statement. “It will help to further protect the iconic form of the Lindt Gold Bunny against dilution from unauthorized copies and will likely serve as a precedent also in other jurisdictions.”

Lindt’s zeal in protecting its chocolate bunny was not a surprise, said Jonathan Drucker, a former general counsel at the Belgian chocolate maker Godiva, who called Lindt “an 800-pound gorilla in the chocolate industry.”

At Godiva, he said, “we were always very cognizant of what their chocolate bunnies look like and what protections they had.”

“Lindt is very, very aggressive as far as trying to stop other competitors from quote-unquote infringing on their trademark and their product, and they’ve been very, very particular about their Easter bunny, which they claim to have ironclad protection for,” he said.

Lindt calls its chocolate bunnies “one of the most famous Lindt chocolate products” and an “iconic Easter fixture.”

“Today, more than 160 million Lindt Gold Bunnies are hopping around the world per year,” the company says on its website, adding that if all the Lindt chocolate bunnies sold annually were lined up, they would stretch from the company’s headquarters in Kilchberg, Switzerland, to San Diego, Calif.

The battle of the bunnies began in 2017, Mr. Gasser said, when Lindt first went to court to stop Lidl from selling its chocolate bunnies wrapped in gold foil (or any other color foil).

The Lidl bunny, like the Lindt bunny, is a compact rabbit, squatting on all four paws. But its facial and paw markings are different from those on the Lindt bunny, according to photos provided by Mr. Gasser. The Lindt bunny also sports a red ribbon and bell while the Lidl bunny has a yellow or green ribbon and bell, the photos show.

In determining whether Lidl infringed Lindt’s trademark rights with its chocolate bunnies, the Supreme Court examined whether such shapes are protected under trademark law. Such is the case when brands became established in the market, the court’s statement said.

Based on the results of opinion polls submitted by Lindt, the court found that Lindt’s chocolate bunnies are well known in Switzerland, and therefore established in the market.

The court also examined whether there was a likelihood of confusion because of the similarities between the two bunnies. It concluded that such a risk existed, even though the products have certain differences.

“Given the overall impression, Lidl’s rabbits have clear associations with the shape of Lindt’s rabbit,” the court’s statement said. “In the public’s mind, they are indistinguishable.”

Mr. Gasser indicated that the ruling would not deter Lidl from making chocolate rabbits. He said the look of its chocolate bunnies changes “almost every year” and it was his understanding that Lidl would make bunnies again next Easter.

“Everything else is subject to internal reflections,” he wrote.

Original story from https://www.nytimes.com

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