The European Court of Justice (“ECJ”) has determined that Chocoladefabriken Lindt & Sprügli AG (“Lindt”) chocolate rabbits cannot be registered as a trade mark in the EU, as they lack distinctive character.

Lindt, the Swiss-based chocolatier, has produced and marketed chocolate bunnies, wrapped in gold and brown foil with a red ribbon bow tie and a bell, since the early 1950’s. Franz Hauswirth GmbH (“Hauswirth”), an Austrian company, has produced and marketed its own chocolate bunnies in Austria since 1962. Hauswirth bunnies are wrapped in gold foil and decorated with a ribbon, but not a bell.

In 2010, the EU Trade Marks Agency, (“OHIM”) held that Lindt could not acquire a trade mark for its bunny shape and wrapping. OHIM’s decision was confirmed by the General Court of the EU, thus leading to Lindt’s appeal to the ECJ, where it was ultimately held that Lindt bunnies cannot be registered as a trade mark, as “Lindt had not proved that distinctive character had been acquired through use across the EU.”

This decision illustrates the difficulties faced to satisfy the test that a trade mark has acquired distinctiveness and it is now possible that this could lead to the breeding of more bunnies on the chocolate market.

Contributed by Leo Moore and John Farrell.

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