Bad faith and chocolate bunnies

It's not yet available on the Curia website, but the Luxembourg jungle-drums have been beating out the news that the Court of Justice of the European Communities has delivered its ruling in Case C-529/07 Chocoladefabriken Lindt & Spruengli. Word from the Kat's friend Stephanie Bodoni (Bloomberg) is that Lindt & Spruengli’s Community trade mark for a chocolate Easter bunny wrapped in gold foil may be at risk if a competitor can prove L&S gained their legal protection in bad faith. Says Stephanie:

"The European Court of Justice today said that “an overall assessment” of relevant factors must be made to check whether Lindt, Switzerland’s oldest chocolate maker, acted in bad faith when it applied for the EU protection in 2000.

“To determine whether there was bad faith, consideration must also be given to the applicant’s intention at the time when he files the application” for the trade mark, the EU court in Luxembourg ruled today.

After acquiring its EU trade mark, Lindt sued Austria’s Franz Hauswirth GmbH, for making “confusingly similar” products to its own 57-year-old rabbit, wrapped in gold foil with a bell and red ribbon around its neck. Sylvia Kaelin, a spokeswoman for Kilchberg, Switzerland-based Lindt, declined to immediately comment, saying she had not seen the ruling

“Even in such circumstances, and in particular when several producers were using, on the market, identical or similar signs for identical or similar products capable of being confused with” Lindt’s product, the Swiss company’s application “may be in pursuit of a legitimate objective,” the court said. In addition, the extent of Lindt’s reputation at the time “might justify the applicant’s interest in ensuring a wider legal protection for his sign,” said the court. Lindt started selling the bunnies in Austria in 1994. Chocolate bunnies have been sold in Austria and Germany since at least 1930, according to court documents".

It remains for the Austrian court, which referred the case for a preliminary ruling, to apply it to the facts. The IPKat -- who is keeping off all chocolates for health reasons -- reserves the right to comment on this ruling once he gets his paws on it.

STOP PRESS: 11.34am: text of judgment now available here