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IP Rights in Meltdown

Many will remember last year’s battle between Aldi & M&S when M&S accused Aldi of copying their Colin the Caterpillar cake.  Whilst Aldi and M&S managed to settle their dispute out of court earlier this year, it was a different story for Lidl who have been ordered to melt down their chocolate bunnies following a dispute with Lindt when the Swiss federal court said that the two products were likely to be confused by the public due to their similarities. 

Background

The signature sitting chocolate bunny, which is one of Lindt’s biggest selling lines, has become an iconic bestseller featuring the infamous gold foil wrapping, red ribbon and a bell.  Lidl’s version was the same save for its ribbon was green.  Lindt relied upon opinion polls to show the success of its branding campaign and to illustrate the public’s awareness of the trade marked shape of its chocolate bunny.

Decision

Switzerland’s federal court , said that the two products were so similar there was a high probability that they would be confused by the public due to their similarities with Switzerland’s highest court stating that the Lindt product should be protected from duplicates.

Consequently, Lidl’s version of the gold foil wrapped bunny is to be removed from sale immediately with any remaining stock to be melted down.   In a summary of its verdict, the court ruled that the destruction of the bunnies was “proportionate, especially as it does not necessarily mean that the chocolate as such would have to be destroyed”.

Comment

Whilst this decision is not binding in the UK it may indicate an intention by Lindt to take steps in the UK courts and other jurisdictions to protect its product.  As always, it is a useful reminder to all retailers to think very carefully before launching products which are very similar to established, best-selling, well known products in the food and drink sector which is likely to see an owner taking steps to protects its intellectual property rights especially where there is a real likelihood of confusion amongst the general public as consumers.

Posted on 11/04/2022 by Ortolan

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