Shades of color can enjoy trademark protection. The Munich Higher Regional Court also confirmed this for the golden shade of chocolate bunny packaging with its judgment on October 27, 2022 (Ref. 29 U 6389/19).
According to trademark law, signs can be registered as trademarks if they possess sufficiently high distinctiveness. This applies to word or image marks, as well as color trademarks, explains the business law firm MTR Rechtsanwälte, whose specialties also include trademark law.
The Munich Higher Regional Court has now confirmed trademark protection for chocolate bunnies in golden packaging. The plaintiff in the underlying case has been producing the chocolate bunnies for many years, which land on supermarket shelves in their golden packaging. The manufacturer sued a competitor who also offered chocolate bunnies in gold packaging and won in the Munich Higher Regional Court. The court decided that there is a risk of confusion between the products for consumers, and therefore the defendant competitor was not allowed to sell their chocolate bunnies in the golden design.
The Federal Court of Justice had previously decided that the plaintiff’s golden chocolate bunny enjoys trademark protection, as 70 percent of consumers would associate this shade with the manufacturer. The tone has established itself as a trademark due to its long and intensive market use, said the Karlsruhe judges, who overturned a previous judgment with their decision. Therefore, the Munich Higher Regional Court had to decide the case anew and followed the Federal Court of Justice.
The Higher Regional Court found that consumers associate the gold shade of the chocolate bunny with the plaintiff and that it is protected as a trademark. The defendant’s chocolate bunny showed too great a similarity due to the gold shade used, creating a likelihood of confusion. Although the defendant’s chocolate bunny exhibited certain differences in shade and design, they were not sufficient to eliminate the likelihood of confusion, according to the Munich Higher Regional Court. The judgment is not yet final.
For years, there have been ongoing legal disputes among various producers over the golden chocolate bunny. The jurisprudence is not clear cut.
The law firm MTR Rechtsanwälte provides its clients with a competent lawyer in trademark law.
