Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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WEDNESDAY, 5 JANUARY 2011
Bundesgerichtshof - Update on "Goldhase II" (Gold Bunny II)
May I dare to write another blog post on "animal" trade marks? This time we have an update on the German Bundesgerichtshof's decision in "Goldhase II" (Gold Bunny II).
Even though this case was already decided in July 2010 and Class 46 reported on this matter based on the court's initial press release on 19 July 2010 (please see here), the Bundesgerichtshof has only now issued the full text and headnote of this decision. The decision in its entirety can be retrieved from the court's website by clicking here. Thanks go to the ever-vigilant Robert Börner for keeping such a close eye on the Bundesgerichtshof's publications.
Our readers may recall that the Bundesgerichthof had to (yet again) decide whether Lindt & Sprüngli's registered trade mark for a three dimensional gold bunny ("Lindt-Goldhase") covering chocolate goods, conveyed the right to prevent the distribution of similar chocolate bunnies (by its competitor Riegelein). The appeal court, the Higher Regional Court of Frankfurt had denied a likelihood of confusion between both chocolate bunnies since the design of both bunnies was not similar enough. On further appeal the Bundesgerichtshof found itself in somewhat bizarre position since the main piece of evidence ("the Riegelein bunny") had gone missing during the appeal proceedings. It was thus impossible for the Bundesgerichtshof to verify the findings of the appeal court. However, the Bundesgerichtshof also objected that the appeal court had not properly justified its decision and took the view that the differing design features of both bunnies were indeed of determinative importance. The Bundesgerichtshof hence sent the matter back to the appeal court and the case will now have to be re-considered by the Higher Regional Court of Frankfurt.
The fulltext of the "Goldhase II" decision also includes the following headnote (which Class 46 has translated for its readers trying to stay as close as possible to the German original - which may explain the lack of 'elegance'):
"Council Regulation Article 9 (1) (b)
The importance of an individual element for the overall impression of a sign consisting of several elements, also significantly interdepends on the relationship it (the individual element) has with the other elements of the sign within the overall concrete composition of the respective composite sign. In this regard, particularly the level of distinctiveness of one of the elements of the sign in relation to the distinctiveness of other elements of the sign may affect the overall impression conveyed by the composite sign."
Posted by: Birgit Clark @ 12.36
Bundesgerichtshof, Goldhase II,
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