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.