The Battle Over Chocolate Bunnies
from the seriously? dept
There are times when I think that intellectual property disputes are actually just “theater of the absurd.” The latest such entry involves Europe’s High Court needing to weigh in on the trademark-ability of a chocolate bunny. The WSJ writeup on this is rather amusing, including all sorts of little rabbit-related turns of phrase (“little critters have since multiplied” and “hopping mad”) as it appears the writer knows how absurd the whole situation is. Amazingly there have been a whole bunch of lawsuits over whether or not such a bunny shape is trademarkable. The company that holds the trademark, Lindt, claims its shape is distinctive, and thus can be covered by trademark. Other chocolate bunnymakers, however, respond that the shape is functional, not decorative, because there are really only so many ways to make a chocolate bunny such that it does not collapse.
It may be surprising to learn that, in this age of automated vehicle assembly and supersonic flight, crafting a hollow, mass-produced chocolate bunny is no mean feat. There are considerations of structural integrity, and the performance capabilities of high-speed foil-wrapping devices….
In court in Austria, Hauswirth called to the stand witnesses from the makers of chocolate-casting machines and foil-wrapping machines.
They testified, said Mr. Schmidt, that “there are certain limits” to the “radius of the ears and so on.” You can’t just make a bunny any old way you wish.
Of course, as other chocolate bunny makers have also noted, making chocolate bunnies of a similar size and shape has happened for many, many years in Europe — long before Lindt claimed a trademark on the shape earlier this decade. And, so, for the past decade, there have been numerous lawsuits (with all different kinds of decisions) over the legality of trademarking chocolate bunnies — eventually reaching Europe’s high court today. At issue was whether or not Lindt’s decision to trademark the shape was done in “bad faith” and the court has now sent the case back to an Austrian court, saying that they should consider a variety of factors in determining whether or not the initial trademark registration was done in bad faith.
So, rest assured, we still have a few more absurdist acts as we find out whether or not chocolate bunnies are truly trademarkable.