The Swiss company group Lindt & Sprüngli has been selling its "Lindt Gold Bunny" in Germany in gold foil since 1952 and in the current golden shade since 1994. Over the past 30 years, more than 500 million Gold Bunnies have been sold in Germany. Thus, the market share in Germany amounted to more than 40% in 2017. According to a traffic survey submitted by the plaintiffs, a share of 70% of the respondents can attribute the golden shade used for the foil of the "Lindt-Goldhase" to the plaintiffs' company group in connection with chocolate bunnies. The plaintiffs are thus of the opinion that they are the owners of a trademark acquired by use with respect the golden shade of the "Lindt Gold Bunny".
The defendant, the Confiserie Heilemann, is also a manufacturer of chocolate products and sold sitting chocolate bunnies in a gold-colored foil in 2018.
The plaintiffs now argue that the defendant infringes Lindt's trademarks acquired by use by selling its chocolate bunnies. The plaintiffs are suing the defendant for injunctive relief against the distribution of its chocolate bunnies. They are also demanding that the defendant provides them with information and are seeking a declaration that the defendant is liable for damages.
The BGH (July 29, 2021 - I ZR 139/20) has now ruled that Lindt's Gold Bunny enjoys trademark protection according to §4 No.2 MarkenG. The shade of gold has established itself as a trademark acquired by use, although Lindt does not use gold as the house color for all of its products. The other characteristic features of the bunny, such as the red collar with little bells, also do not prevent this.
However, the BGH did not comment on a possible likelihood of confusion between the Lindt Gold Bunny and the defendant's chocolate bunny. The case is thus being referred back to the Higher Regional Court in Munich.