Swiss chocolatier, Lindt, has been embroiled in various courtroom battles over their iconic milk chocolate rabbit. Recently, Lindt was engaged in a dispute with Lidl (German international discount retailer). Lindt claimed that Lidl had infringed its trade mark rights by selling similarly shaped chocolate rabbits. The case highlights that consumer protection will remain at the forefront of the Court's mind when making decisions about certain shape trade marks.

In the initial Court ruling, the Swiss Federal Supreme Court found in favour of Lidl on the basis that the rabbit-shaped chocolate was not distinctive enough and that there were a wide variety of chocolate rabbit-shaped products on the market. On appeal, the Court found that a risk existed where consumers would confuse Lidl's chocolate rabbit product with Lindt's chocolate bunny and granted Lindt a broad scope of protection. In particular, the Court considered consumer surveys which indicated that the majority of respondents recognised that the Lindt bunny was produced by Lindt. The Court concluded that the average consumer was more likely to see Lidl's chocolate rabbits and confuse it with the Lindt product.

The Court found that the word and figurative mark of 'Favorina' on the Lidl product did not eliminate the likelihood of confusion between the two products. The Court considered that customers select products known to them above all on the basis of the shape and the main features, without necessarily consulting the label.

European Union trade mark regulators believe that consumers are less likely to see the shape of a product as an indicator of commercial origin than a brand name or logo. They generally require evidence that the shape has been around for some time, and that it also departs significantly from the norms of the industry.

An Australian Court may have come to a different decision. In Australia, it is difficult to register and enforce shape trade marks if the shape, or depictions of the shape trade mark, are used in combination with other branding elements. Achieving the level of ubiquity required to be granted a trade mark registration for a shape can be difficult.