Lindt’s chocolate bunny wrapped in aluminum foil benefits from trademark protection against Lidl’s. Given the risk of confusion, the discount chain must stop selling its rabbits and destroy those in stock, according to the Federal Court.
At the end of 2018, Lindt & Sprüngli AG brought proceedings against Lidl Schweiz AG and Lidl Schweiz DL AG before the Commercial Court of the Canton of Aargau. The chocolatier demanded that the sale and promotion of Lidl’s chocolate bunnies, wrapped in gold foil or any other color, be banned and that stocks be destroyed.
Lindt believed that his competitor’s rabbit had a shape and appearance very similar to his own and that there was a risk of confusion. This infringed its registered trademarks. The Commercial Court dismissed Lindt’s action in 2021.
Admissible polls
In a judgment published on Thursday, the Federal Court adopts an opposite position and annuls the Aargau judgment. As a preamble, he examined whether the two three-dimensional shapes registered by Lindt for his rabbit could be protected by trademark law: the court concluded that this was the case if these marks had established themselves on the market.
Gold Lindt produced opinion polls indicating that his rabbit had gained general notoriety among the public. According to the case law of the Federal Court and contrary to the opinion of the Aargau justice, a survey commissioned by a party can serve as evidence if it has been scientifically designed and carried out using an appropriate method.
Risk of confusion
We must therefore admit that the shapes that the chocolatier has had protected are associated by a very large part of the public with the Lindt & Sprüngli company.
Then, the 1st Court of Civil Law wondered whether the similarity between the two products led to a risk of confusion. She answered positively to this question even if the rabbits of the two manufacturers present certain differences. Considering the overall impression, Lidl’s rabbits arouse obvious associations with those of Lindt – in the mind of the public they cannot be distinguished.
Under these conditions, the ban requested by Lindt must be accepted. The same applies to the order of destruction of Lidl rabbits in stock. This measure is considered proportionate by the Federal Court because it does not concern the chocolate itself, which can be reused. (judgment 4A_587/2021 of August 30, 2022)
This article has been published automatically. Source: ats