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In Luxembourg, the European Court of Justice is set to rule on the validity of Chocoladefabriken, Lindt, & Sprungli’s trademark claim to a chocolate bunny. Lindt was granted a European trademark on the foil-wrapped bunny in 2001 and has been actively defending it ever since. Infringers, however, believe the bunny should never have received a trademark in the first place.
As in America, the European Union allows logos, graphics, and words to be trademarked, but the trademarkability of 3D objects is less clear. And according to some, making a chocolate bunny isn’t as easy as you might think. The court has heard testimony that “there are certain limits” to the “radius of the ears and so on.” If this is true, the court may be persuaded that manufacturing limitations cause the trademarked chocolate bunny shape to be functional–and trademark law does not protect functional shapes.
Additionally, infringers say that Lindt acted in bad faith by registering the trademark in the first place. By the time the trademark was registered in 2001, chocolate bunny manufacturers worldwide had already been using the shape for almost 70 years.
Although the court will not be setting European Union standards for chocolate-bunny trademarks, a judgment against Lindt could hurt its bunny trademark claims throughout Europe.
– Kate Thornton
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