The Lindt gold bunny versus Lidl
One of the best-known Swiss trademark cases of recent years: in 2022 the Federal Supreme Court found that Lidl's gold bunnies were confusable with Lindt's gold bunny.
What was it about?
Lindt & Sprüngli has its seated chocolate bunny, wrapped in gold with a red ribbon and bell, protected as a three-dimensional shape mark. When Lidl offered its own similarly designed gold bunnies in Switzerland, Lindt sued for an injunction.
So this was not a word-mark dispute, but a shape mark – the question was: is the overall impression of the Lidl bunnies so similar to the protected Lindt bunny that the public confuses them?
The course of events
Protected shape
Lindt holds the gold bunny as a 3D shape mark (gold, red ribbon, bell).
The Lidl bunnies appear
Lidl Switzerland sells similarly designed seated gold bunnies.
Aargau Commercial Court
The lower instance initially dismisses Lindt's action.
Federal Supreme Court, 30.08.2022
The Federal Supreme Court allows the appeal and finds a likelihood of confusion.
Consequence
Sales stop; remaining stock must be withdrawn – the chocolate itself may be recycled.
Likelihood of confusion affirmed
Decisive was the overall impression from consumers' imperfect recollection – not a direct, side-by-side comparison of detail.
What you take from it
What is assessed is how two signs stay in memory as a whole. Whoever compares details misses the real danger. This applies to shape marks as to word marks: the overall impression counts, and a well-known, strong trademark enjoys broad protection.
For trademark owners this means: an approach must be spotted early – it can then often be stopped with a letter, instead of moving through the instances for years.
Sources
Swiss Federal Supreme Court, judgment 4A_587/2021 of 30 August 2022; coverage notably by NZZ and SRF (September 2022).
Spot approaches early
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This article is for information and does not constitute legal advice.