Competition among European confectioners is the focus of the 1964 Roald Dahl book Charlie and The Chocolate Factory and its two movie adaptations. The plot is built around the reclusive Willy Wonka, who planted golden tickets inside his Wonka chocolate bars, inviting children to his factory. Although this was framed as a contest, Wonka’s real goal was to put the children through a series of increasingly dangerous morality tests–involving candy, of course–in order to choose an heir. The real-life world of European confections may not have Oompa-Loompas or blueberries that blow children up like balloons, but it is indeed fiercely competitive as a recent battle over trademark and trade secrets shows.
A HoppelGanger, or an Infringing Bunny?
The most recent chocolate spat is the result of Lindt’s efforts to protect its own golden ticket, its chocolate Easter bunnies.The Lindt Gold Bunny, made since 1952 and considered “iconic” by the confectioner, could be considered the crown jewel in the Lindt chocolate line. According to the Lindt website, the company sells over 160 million bunnies per year, mostly during Easter, making it one of their most profitable confections. So important is this product to Lindt that it has vigorously registered trademarks, including protection for the bunny’s shape and hollow form, ribbon color, and foil covering.
However, trademark-hopping across Europe is no easy task, and the company was awarded trademarks for the shape and for its gold foil in some European nations, but not in all. In 2017, Lindt filed suit against a potential “hoppel”ganger bunny–a similarly shaped chocolate bunny also wrapped in gold foil–manufactured and sold by Lidl, a German discount supermarket. In this case, the venue was the highest court in Switzerland–a nation known for its fine chocolates–and Lindt vigorously defended its marks.
Where trademark litigation results from confectioner ire, a consumer survey may be found at the (hollow) core. In its quest to protect the Gold Bunny, Lindt submitted a consumer research survey that found that 70% of respondents recognized the specific golden shade of the foil wrapping as an indicator of origin for Lindt products.
The Swiss high court relied on the likelihood of confusion survey in this case, determining that the Lidl gold bunny infringed on Lindt’s Gold Bunny marks in Switzerland. The court also relied on a likelihood of dilution survey submitted by Lindt, ruling that the Lidl bunny diluted the brand recognition of the Lindt bunny. In a ruling befitting Roald Dahl, justice came in the form of the court ruling that all the Lidl Chocolate bunnies be destroyed. But, like Charlie and The Chocolate Factory, this story has a sweet ending–the judge allowed Lidl to melt down the bunnies to become another sweet treat. (But if it’s in the shape of a marshmallow Peep, watch for more seasonal confectioner ire.)
If you require a likelihood of confusion or likelihood of dilution survey, please contact MMR Strategy Group for reliable survey research.