Chocolate war in Europe

It’s serious business to the parties involved, but I got a smile out of reading in today’s Wall Street Journal about the chocolate bunnies being considered by the European Court of Justice in Luxembourg today. From a legal standpoint it’s more about trademarks than about bunnies, but the visible symbol of the dispute is the foil-wrapped bunny marketed by Franz Hauswirth – and the Lindt bunny on whose trademark Hauswirth infringes, according to Lindt.

I know just a little about laws regarding trademarks from my business classes – enough to understand why some companies make a big deal out of people using a brand name as a common noun. If people say kleenex when they mean facial tissue and xerox when they mean photocopy (both of which are very common usages in my experience), eventually the words will be so widely associated with a generic product that the companies will lose their trademark rights.

In order to prevent that, companies have to be able to show that they have made a strong effort to prevent the “genericization” of their brand names, even if they are not successful in preventing a lot of people from using them that way anyway. Some ocmmon trade names that have become generic words include aspirin, thermos, linoleum, kerosene, raisin bran, trampoline, and zipper.

Of course, it’s a lot easier to identify (though perhaps not to stop) misuse of a trademark in the case of a word than a shape. I find it interesting, when shopping, to notice the variety of shapes and color schemes in the packaging of the store brand of a product. They may sell a dozen or more different varieties of shampoo, but each one will be similar, not to the others with the same store-brand name, but to the competing name brand which it is designed to imitate. Law requires that they be different enough that a consumer can pick out which is which, but the similarity is enough that the store is clearly hoping people will make purchases based on that more-or-less distinctive image.

I assume that is what is meant in this WSJ article by references to three-dimensional trademarks. Lindt claims that the overall shape of its chocolate bunny, the gold foil, and the bow tied around its neck constitute a trademark deserving legal protection. Perhaps if they had registered the trademark several decades ago they would have a stronger case. But the European trademark dates only to 2001, and competitor Hauswirth has been selling their bunny for forty years. Their countersuit claims that Lindt acted in bad faith in trying to register a trademark to begin with, on a shape/look already in use by other companies.

Due to time zone differences, I can already read an article in tomorrow’s Wall Street Journal reporting the court’s decision. The case has been sent back to Austria’s Supreme Court, with a test for “bad faith” in a trademark claim:

whether a trademark applicant “knows or must know” that someone else is using the mark, whether filing was made to block that party from using it, and whether the products have other legal protections

Hauswirth sees this as a victory for his firm, and I’m inclined to agree. Personally I think the four bunnies shown (see slideshow) look different enough that I can easily distinguish them, but not so different that a well-define trademark could be assigned. And I also agree with Hauswirth that his bunny is better looking than Lindt’s – though if I were going to buy one I’d be more interested in knowing which one tastes better.

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