29.07.2021: With Federal Court of Justice (BGH) decision golden shade of Lindts hare is a protected trademark
With the ruling of the BGH, the golden hue of the Lindt hare is a protected use mark. Lindt-Sprüngli has been taking legal action against an Easter hare of Confiserie Heilemann for 3 years now, the issue being the golden packaging foil enclosing the chocolate figure.
The I. Civil Senate of the Federal Court of Justice justified its decision that the gold shade of the Lindt bunny enjoys trademark protection on the grounds that Lindt & Sprüngli had proven that more than the required 50% of potential buyers associate gold with Lindt. In a survey submitted, 70% of consumers automatically identify the shade with the Lindt hare. Thus, the colour had established itself as a use mark.
The Munich Higher Regional Court will now examine in appeal proceedings whether the Swabian confectioner Heilemann may continue to sell its golden bunny or whether the Lindt trademark is actually infringed because there is a likelihood of confusion between the products.
Practical tip:
This shows that trademark protection for abstract colours is an effective means of identifying one's own products and services and thus achieving a high degree of recognition.
However, the BGH emphasises that such trademark protection requires a great deal of effort in advance. For the trademark will only be registered if the buyers have been made aware of it through intensive advertising, i.e. if the colour is clearly assigned to the company.
This means that colour trademark protection is associated with high costs, both in terms of publicity in the market and with regard to market research and evidence in the registration procedure, which should be considered at an early stage.