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Duel of the golden Easter bunnies
German business news website manager-magazin.de reports that the Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) has recently decided that German confectionery producer Riegelein could continue producing and distributing its chocolate Easter bunnies using gold coloured wrapping foil ("Goldhasen"). The Swiss confectionery producer Lindt & Sprüngli sought to prevent this, claiming a likelihood of confusion with its own Lindt Easter bunnies.
Full details of the decision are not yet available. However, manager-magazin.de states that Lindt's bunnies had been registered as [three dimensional] trade marks [since 2000] and that Lindt claimed that more than 50% of German consumers associate the sitting chocolate bunnies, wrapped in gold foil, with Lindt. Riegelein had argued that Lindt had certainly not invented the gold bunnies and that the bunnies wrapped in gold foil were a "well tried" and well known shape in the trade, which numerous producers used to offer in the past.
In a press release Riegelein's lawyer said that the court's decision had shown that shapes like the golden bunnies that had been common in the trade for decades could not subsequently be monopolised by one company using the means of a trade mark registration to prevent competitors from further offering already well established older products.
Meanwhile the Austrian newspaper Der Standard reported on 30 November 2007 that the highest Austrian court, the Oberste Gerichtshof (OGH), had suspended a similar case and referred several questions of law to the ECJ. In the Austrian case, Lindt sought to prevent Hauswirth, an Austrian producer of confectionery, to produce and offer chocolate bunnies wrapped in gold foil claiming a likelihood of confusion with Lindt's bunnies. In contrast to its competitors Hauswirth's bunnies had the "Hauswirth" trade mark affixed only to the underside of the bunnies so that the trade origin was not obvious when on offer on a supermarket shelf.
The ECJ's decision in Hauswirth is expected for 2009.
Tags: Austrian Trade Marks, Bunnies, ECJ, German trade marks,



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