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Monday, 19 July 2010

This bunny (litigation) never dies

The dispute between Lindt and their competitor Riegelein in Germany goes in the n-th round after the Bundesgerichtshof just overturned a decision by the Oberlandesgericht Frankfurt which did not find any likelihood of confusion between Lindt's 3-D bunny trade mark and Riegelein's chocolate bunny (and this is not even the litigation that led to the ECJ "bad faith bunny" decision; that one is in Austria between Lindt and an Austrian competitor, Hauswirth).


The parties are at it since 2002. Both the first instance court and the Oberlandesgericht (OLG) Frankfurt had denied Lindt's request for an injunction, basically arguing that the word mark "Lindt" visible on the 3-D trade mark precluded any likelihood of confusion between the mark and Riegelein's bunny. In a decision of October 2006, the BGH reversed for the first time: the overall impression of the mark was relevant, not the word mark alone. The case was sent back to the OLG Frankfurt.

Lindt submitted a sample of a Riegelein bunny in the second oral proceedings, and requested that the sale of bunnies "such as the one submitted" be enjoined. The OLG Frankfurt, in its second decision, still did not find any likelihood of confusion, comparing the mark with the Riegelein bunny and noting that the colour of the bunnies was different, Riegelein's bunny was lacking the red ribbon and the facial expression of Riegelein's bunny was "cheerful", while Lindt's bunny was "dignified" (I couldn't make this up if I wanted to).

Lindt appealed again to the BGH. It turned out that the bunny submitted in the second oral hearing was lost (hungry court clerk?). The BGH was not amused, noting that it could not examine whether the OLG's decision had been correct if the basis for the decision was not in the file. More importantly for trade mark law, it also held that the OLG had insufficiently explained why, in view of a demoscopic survey that showed that a large majority of the public associated a gold bunny in the shape of the mark without a red ribbon and without any facial features with Lindt, the lack of ribbon and the smiling face of the Riegelein bunny could exclude any likelihood of confusion.

So here we go again. Back to OLG Frankfurt for the third round. I don't think they are cheerful like a Riegelein bunny in Frankfurt right now.

7 comments:

Anonymous said...

at it like bunnies then

Bunny said...

Please can you post a link to the full decision and the case reference?

Mark Schweizer said...

the full grounds for the decision are not yet available, usually takes 2-3 months from the date of the decision for them to be posted. Case reference is I ZR 57/08.

Anonymous said...

We should perhaps consider introducing claims to define trademark subject-matter, deciding infringement would then be soooo much easier. Lemme see...

1. A chocolate bunny comprising a chocolate edible means shaped in a form selected from the group comprising bunnies, rabbits, hares, or operably reminiscent of a small mammal of the Leporidae order; an aluminium wrapper, the wrapper being at least wrapped around the chocolate edible article; ribbon means substantially knotted about the neck of wrapped edible chocolate article, characterised in that the wrapper presents a dignified look motive.

Instead of PSA, originality could be judged using a reverse giggle test.

I think I'll stick to patents when I that some things could be worse. ;-)

Anonymous said...

Sorry, dear IPKAT help me, where does the Bundesgerichthof say "facial expression of Riegelein's bunny was "cheerful", while Lindt's bunny was "dignified"". I can't find it? Thankyou

Mark Schweizer said...

it's not the BGH, it's the OLG Frankfurt that makes observations on the cheerfulness of the bunnies in its decision of 8 November 2007, Az. 6 U 10/03, para. 28. The exact quote is:

"Nicht zuletzt verleiht das aufgemalte Gesicht des Y-Hasen mit dem geöffneten Mund und den sichtbaren Zähnen diesem einen eher fröhlichen Charakter, während der X-GOLDHASE eher zurückhaltend, edel gezeichnet ist."

Decision here:
http://www.lareda.hessenrecht.hessen.de/jportal/portal/page/bslaredaprod.psml?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferliste&fromdoctodoc=yes&doc.id=JURE080009602%3Ajuris-r01&doc.part=L&doc.price=0.0

Arthur Sleep said...

I'd say the Riegelein bunny looks more crafty than cheerful, as if he may have left a few chocolate drops in the house of the Lindt bunny.

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