Lindt has ‘Lidl’ chocolate bunnies melted down in Switzerland

The Federal Supreme Court of Switzerland overruled the Swiss Commercial Court’s decision last year.  Whilst it noted that there were some differences between Lindt’s and Lidl’s chocolate bunnies (including Lidl’s bunny having a green bow and bell), it considered that that the products were too similar and there was still likely to be confusion amongst consumers.  In support of its position, Lindt relied upon opinion polls to show the success of its branding campaign and the public’s general awareness of the – trade marked – shape of its chocolate bunny.

Ultimately, Lidl was ordered to cease selling, and to destroy its remaining stock of, its chocolate bunnies in Switzerland.  The court also reportedly stated that its order to destroy the remaining chocolate bunnies was proportionate, with the court suggesting that the chocolate could be melted down and re-used.

Comment

Lindt’s chocolate bunny is another example from the food and drinks sector of the owners of established and best-selling products successfully protecting their intellectual property, especially where there is a real likelihood of confusion amongst consumers.  And, who can forget the recent ‘bake-off’ between Marks & Spencer and Aldi involving the Colin and Cuthbert Caterpillar cakes?

Whilst this decision is not binding in the UK, it may only be a matter of time before Lindt looks to take steps in the UK courts and other jurisdictions.  In the meantime, we may see retailers tread (or perhaps on this occasion hop) more carefully in relation to launching similar items to the major brands’ “best-selling” products in the food and drinks sector.

Our Disputes and Corporate and Commercial teams are highly experienced in advising businesses on intellectual property issues including trade marks.  If you would like advice about protecting your intellectual property, please get in touch.