What would the peace-loving Easter bunny say? Two of Europe's best-known chocolate companies spent yesterday locked in hearings at the European Court of Justice (ECJ) over the delicate question of whether it is legally permissible to trademark a chocolate rabbit.
Lindt & Sprungli, the Swiss chocolatier, which first launched its chocolate rabbit – wrapped in the distinctive gold foil – in 1994, was outraged when competitors began launching similar products. So in 2000, it applied for, and received, a trademark for its design. It has since brought a series of legal actions against companies it accuses of being its imitators.
However, one rival, the Austrian chocolate maker Hauswirth, was not prepared to simply melt away. It argues that chocolatiers have been producing gold foil-wrapped bunnies since at least 1930, and that anyway, anyone who makes a chocolate rabbit is going
to turn out something that looks pretty similar to Lindt's version.
Yesterday, the case reached the ECJ, with Hauswirth asking the judges to rule that Lindt should never have been granted its trademark.
The ECJ ruled that, in theory, a trademark such as the one Lindt now has could have been granted in "bad faith" – if the company applying for it did so in the full knowledge that similar products were already available elsewhere in the European Union, and if its application was part of an attempt to prevent rivals selling such products.
That gives Hauswirth a chance of having Lindt's trademark overturned once the case returns to the Austrian courts, though the ECJ did warn that there could also be "a legitimate objective" in such cases. Lawyers also say that the concept of "bad faith" is notoriously difficult to prove.
Lindt must now cross its fingers for when the dispute returns to Austria for its final hearing later this year. Were the verdict to go against it, rival chocolatiers will move back into the market – and chocolate bunnies breed almost as quickly as the real ones.