European confectioners' competition has engaged the public imagination for decades, most memorably in Roald Dahl's Charlie and the Chocolate Factory and its subsequent film adaptations. Featuring an eccentric chocolatier, Willy Wonka, who conceals golden tickets inside chocolate bars and offers children a once-in-a-lifetime factory tour, the story shows that underneath the contest is a series of moral tests to identify a potential successor.
The European confectionery market lacks Oompa-Loompas and fantastic candy punishments but remains competitive and protective of trade secrets. A trademark and trade dress dispute involving chocolate Easter bunnies shows how consequential the competition can be.
HoppelGanger?
Lindt Swiss Chocolatier protects the Lindt Gold Bunny. Produced since 1952 and described as “iconic,” the Gold Bunny is widely held as a signature product in the company’s portfolio. According to Lindt, more than 160 million Gold Bunnies are sold annually, primarily during the Easter holiday season, making it among the company’s most profitable confections.
In 2017, Lidl, a German discount supermarket chain, manufactured and sold a similarly shaped chocolate bunny wrapped in gold foil. Lindt filed a complaint and characterized the product as a “hoppelganger.” The case was adjudicated in Switzerland’s highest court, a notable venue, given the nation’s reputation for premium chocolate production. Lindt vigorously asserted its trademark rights in this forum.
Lindt has also aggressively protected this product across Europe, with registrations for the bunny’s shape, hollow form, red ribbon color, and distinctive gold-foil wrapping. But securing uniform trademark protection across multiple European jurisdictions remains a challenge. How did Lindt employ consumer survey research to make its case?
Golden Rules
Trademark litigation frequently turns on consumer perceptions, and Lindt introduced consumer survey research as evidence. The company submitted surveys of the likelihood of confusion and potential product dilution, including findings that 70 percent of respondents associated the specific shade of gold foil used on the bunny with Lindt as the product’s source.
The Swiss high court relied on this survey evidence to conclude that Lidl’s gold bunny infringed Lindt’s trademark rights in Switzerland. The court also relied on Lindt’s likelihood of dilution survey, determining that Lidl’s product weakened the distinctiveness of the Lindt Gold Bunny.
The court ordered that all infringing Lidl chocolate bunnies be destroyed. In a practical concession, however, Lidl was permitted to melt down the products for use in other confections.
Survey Evidence in Trademark Disputes
Consumer survey research frequently plays a role in trademark litigation. Courts and regulators frequently rely on survey evidence to measure consumers' perceptions of product attributes, trade dress, and source indicators. The IMS Legal Strategies Litigation Surveys and Consumer Sciences team has decades of experience in designing and executing defensible survey research, meeting the proof requirements of adjudicators. In disputes involving complex trademarks, false advertising, and intellectual property, top firms rely on evidence of consumer perceptions and on testimony from IMS Legal Strategies.
