Shades of color can enjoy trademark protection. The OLG Munich also confirmed this for the golden shade of the packaging of chocolate bunnies with a judgment dated October 27, 2022 (Az. 29 U 6389/19).
Under trademark law, signs can be registered as a trademark if they possess a sufficiently high degree of distinctiveness. This applies, for example, to word or figurative marks, but also to color marks, explains the commercial law firm MTR Rechtsanwälte, whose areas of expertise include trademark law.
The OLG Munich has now confirmed trademark protection for chocolate bunnies with golden packaging. The plaintiff in the underlying case has been producing the chocolate bunnies, which end up on supermarket shelves in their golden packaging, for many years. The manufacturer sued a competitor who was also offering chocolate bunnies in gold packaging and was upheld by the OLG Munich. The court decided that there was a likelihood of confusion between the products for consumers and that the defendant competitor was therefore not allowed to sell their chocolate bunnies in the golden design.
The BGH 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. Due to its long and intensive use in the market, the shade has established itself as a trademark, said the Karlsruhe judges, who overturned a previous ruling with their decision. Therefore, the OLG Munich had to re-decide the case and followed the Federal Court of Justice.
The OLG ruled that consumers associate the gold shade of the chocolate bunny with the plaintiff and it is protected as a trademark. The defendant’s chocolate bunny has too great a similarity due to the gold shade used, so there is a risk of confusion. While the defendant’s chocolate bunny shows certain differences in hue and design, these are not sufficient to exclude the risk of confusion, according to the OLG Munich. The judgment is not yet final.
For years, there have been ongoing legal disputes among different producers over the golden chocolate bunny. The jurisprudence on this is not clear.
The law firm MTR Rechtsanwälte provides their clients with a lawyer skilled in trademark law.
