Can the shape and colour of your goods be protected with a trademark? – Lindt & Sprüngli

In 2022 the Swiss Chocolate brand, Lindt, commenced a trademark action against Lidl in Switzerland, on the grounds that Lidl’s sale of chocolate shaped bunnies wrapped in golden foil was very similar to Lindt’s own chocolate gold bunnies which was in fact a registered trademark shape.

Lindt’s product which consists of a chocolate shaped bunny with a golden foil wrap, red ribbon and a bell around the neck of the bunny shape. Lindt has this shape trademarked in 3D, in black, gold, brown, red and white colouring.

The main question in Lindt’s case was whether if their 3D bunny trademark was distinctive enough that it allowed customers to differentiate this precise good from other brands. Lidl argued that bunny shapes was a common shape, therefore Lindt’s bunny shaped chocolate could not be distinctive enough, meaning that it should not be able to be Lindt’s registered mark. However, the court ruled in favour of Lindt as they discovered from consumer surveys that consumers were linking the bunny shaped chocolate to Lindt.

It was believed by some that one of the reasons why Lindt was able to successfully argue their case was because Lindt focused on the colour of their shape and how those colours created a distinctiveness for their product rather than the shape alone. It was argued that the particular golden tone of the wrapping foil was in itself a factor that increased Lindt’s product.

If you would like to discuss protection of your brand, please get in touch with the Trademarkroom team today.

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