The chocolate maker argued that the sign was already trademarked in 15 out of 25 member states, which represents 75.4% of the EU population.
Hop -on
However, the ECJ upheld previous decisions that found the bunny symbol was devoid of any distinctive character under Article 7 (1) of Regulation No 40/94.
“Only a mark that departs significantly from the norm or customs of the industry and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character,” said the court.
Judges J.-C. Bonichot, A. Prechal, K. Schiemann, C. Toader and E. Jarašiūnas found that OHIM and the General Court had correctly applied case law and therefore rejected Lindt’s appeal and ordered it to pay costs.
Bunny wars
The decision will come as a bitter blow to Lindt after a seven year struggle to trademark its bunny.
It first filed an application with OHIM in 2004, which was rejected since evidence that it had character came only from Germany and not the EU as a whole.
Lindt then lodged an appeal in 2008 against OHIM that was again rejected. The Fourth Board of Appeal said that rabbits were a typical shape for chocolate, particularly around Easter, and therefore lacked distinctive character.
Its next appeal came later that year to the EU’s General Court. This court approved the findings of the Fourth Board of Appeal that a ‘sitting’ or ‘crouching’ rabbit was common among chocolate rabbits and thus devoid of any distinctive character.
It added that gold foil was commonplace, while many other chocolate animals have small bells and bows much like the Lindt Bunny’s red recktie.
Watership Down
The trademark case is not the first of Lindt’s rabbit skirmishes.
Lindt was also embroiled in a bunny battle with Austrian confectioner Hauswirth, a company that also manufactured sitting gold chocolate bunnies with red neckties.
After eight years of legal wrangling, an Austrian court ruled in March that the Hauswirth had to change the appearance of its rabbits.
Swiss chocolatier Lindt & Sprüngli was appealing previous decisions by the EU trademarks agency OHIM and the EU General Court, which both rejected Lindt’s application to have its gold-foiled chocolate bunny with red necktie registered as trademark across the EU.
