globalEDGE Blog: Tasty Treat Tries 3-D Trademark

Tasty Treat Tries 3-D Trademark

File under: Trade Law, Trademark,

We see them everywhere at Easter. Sometimes big, sometimes small, but always looking similar and always looking delicious. I'm talking about the famous chocolate bunny. I don't know about you, but I've had about 5 different kinds, and all had a similar shape. However, a few days ago in Luxembourg, the European Union's highest court ruled on a case about trademarking the shape of this tasty treat.

Back in 2001, Chocoladefabriken Lindt & Sprüngli AG (whew! that's a mouthful) got a European trademark for it's gold-foil bunny, ribbon, bell, and all. Ever since that time, Lindt has been looking for rabbits that try to steal the design. 5 years ago, Lindt sued Franz Hauswirth GmbH, for trademark violation. I thought it was kind of ridiculous. First off, the bunny has no bell, has a different color, and is shaped slightly differently, and rightly so, they countersued. They claimed Lindt acted in "bad faith" by registering a trademark for something that has been in existance for a very long time. There are also manufacturing limitations on the shapes. A few years ago, Lindt won an injunction, forcing Hauswirth to stop production, and give away 300,000 of the stock to charity.  

The Hauswirth lawyer, Mr. Schmidt had this to say, "It's a question of morality and ethics. We have been producing this kind of rabbit for 40 years. What's more, we've got several rabbits, but this is one of the most attractive ones to children. More so than in my opinion, the rather snobbish Lindt rabbit." The whole issue of three-dimensional trademarks is unclear. They say the product must be distinctive, but it cannot be functional. Not only is that part of the case complicated, but so is the "bad faith" part. That is what the Austrian Supreme Court has asked the European Court of Justice in Luxembourg to rule on. You can read about what the court decided here.

The U.S. Patent and Trademark Office has already given Apple Inc. a trademark for the three-dimensional shape of its iPod. But overall the U.S. and the European Union have been reluctant to give trademarks to shapes that are three-dimensional. You may ask why nontraditional trademarks such as these are even important. Market research shows us that the trademarks can promote brand recall and increase sales.

For any company, getting a trademark like this can be highly valuable. Lindt has already shored up its franchise, and looks to be a tough competitor for years to come. It's important to understand that trademarks applied for in a certain region only apply to that region, so this trademark in the European Union would not apply to the U.S. In this ever expanding global economy, preserving and protecting intellectual property is becoming very important. Trademarks last forever, so as 3-D movies become more popular, 3-D trademarks could be a smart business initiative for the future.

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