It is not quite Easter yet but according to Austrian media reports the Austrian Supreme Court OGH last week delivered an early Easter egg to Swiss chocolate makers Lindt & Sprüngli. Our readers will, of course recall, the long standing "gold bunny" dispute between Lindt & Sprüngli and their competitor, the Austrian chocolate maker Hauswirth.
Hauswirth's bunny is shown to the left, Lindt's bunny is shown to the right below.
Our readers will recall the ECJ's judgment in C‑529/07 Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH, also known as the "Easter bunnies case", which was a reference for a preliminary ruling from Austria on the question of how to establish bad faith in trade mark invalidity proceedings. Earlier this year the Commercial Court of Vienna had decided that was no longer allowed to sell chocolate bunnies that are confusingly similar to Lindt’s bunnies. Unsurprisingly Hauswirth has appealed the decision but the Austrian Supreme Court has now confirmed the Commercial Court's decision.
Austrian newssite Wirtschaftsblatt cites a spokesperson for Lindt as saying that they "were not out to destroy Hauswirth but did not wish to see plagiarised bunnies". Hauswirth's spokesperson is cited as saying that a "negative decision was better than no decision". This Kat can understand this sentiment since this case seems to have been going on since 2004. Hauswirth's attorney told Wirtschaftsblatt that Hauswirth will have to pay Lindt's legal costs of 56000 Euros and that Lindt can now either choose to receive a proportionate compensation or damages including loss of profits.
So is this really the end of Hauswirth's bunny? There is some hope: Hauswirth plans to keep its bunny "alive" by changing its design but wants to check the details with Lindt first (which seems advisable, Merpel adds) and they hope that consumers will accept the Austrian bunny's eventual new design. Let's see whether both parties can agree on such an alternative bunny design...