The Battle Over Chocolate Bunnies

from the seriously? dept

Thu, Jun 11th 2009 1:59pm — Mike Masnick

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.

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Filed Under: chocolate bunnies, europe, trademark

11 Comments

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Anonymous Coward, 11 Jun 2009 @ 2:05pm

That has always been my favorite comic. You know, the one we all see around Easter.

Bunny 1 "Ouch, my butt hurts"

Bunny 2 "......what?????"
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Anonymous Coward, 11 Jun 2009 @ 2:58pm

I gonna trademark the shape of a twinkie...Those Hostess bastards are stealing my IP!
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Anonymous Coward, 11 Jun 2009 @ 2:59pm

Re:
*giggle* I like that one, too.
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Anonymous Coward, 11 Jun 2009 @ 3:10pm

Hmm, I wonder why bunnies got picked to be eternally preserved in chocolate form. Why not cats, or dogs, or mice, or gerbils, or heck, even snakes? Or any other common household pet. I wouldn't mind eating a chocolate snake at some point. It would certainly be easier to eat, being so skinny.

And btw, who cares about hollow bunnies? If I bite into a piece of chocolate and find that it's hollow, my first thought is that the company is a cheapskate. I expect solid chocolate. Not only that, but I'm sure making a hollow piece of chocolate is no easy feat, and there's extra manufacturing cost being passed onto the consumer, which means we're paying more for less. Yippee!

Hey, we're all too fat anyway. Let's leave the chocolate people alone and go grab a salad somewhere.
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Jason, 11 Jun 2009 @ 3:20pm

Re:
Thanks for the memory.
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Gill Bates, 11 Jun 2009 @ 4:14pm

Trademark Heaven
I am going to trademark a sphere, a cube and rhombohedron.
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Chargone, 11 Jun 2009 @ 4:17pm

Re:
the bunnies are because Easter was timed to overwrite, timing wise, pagan fertility festivals. the bunny [breeding, as they do, like rabbits] is a fertility symbol.

mash your traditions together, add chocolate, and there you are.

and as for the bunnies: is the difference production cost actually more, or less, than the difference in the cost of ingredients for a hollow bunny vs a solid one, do you know? something to think about.
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Anonymous Coward, 11 Jun 2009 @ 4:39pm

Hollow bunny production
I suspect hollow bunny production would cost more. The production process was shown in a cable TV program (don't recall whether it was "How It's Made" on the Discovery channel or History Channel's "Modern Marvels"); IIRC, melted milk chocolate was deposited in one half of a bunny-shaped mold, then the other mold half is clamped in place and the complete unit spun both horizontally and vertically to distribute the chocolate as it hardens.

Now, if the chocolate bunny was of Energizer's iconic drum-banging rabbit I could see the rationale for trademark protection.
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teka, 11 Jun 2009 @ 5:55pm

Hollow-bunny load bearing dynamics aside, I would think that while a hollow, molded rabbit has slightly higher costs for production, the higher material costs (more chocolate) for a solid bunny outweigh them.

In addition, assembly/forming line costs can often be reduced with better processes or machinery, while high material costs can only be offset by using inferior materials or using less of them.. and a half-hollow bunny would just be silly.

Chocolate and trademarks.. yum.
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CleverName, 11 Jun 2009 @ 6:11pm

Hollow Bunnies are crap
I think hollow bunnies require the chocolate to contain a higher percentage of wax in order to maintain the structural integrity.

When will someone trademark the bar shape ?
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spaceman spiff, 12 Jun 2009 @ 7:05am

trademark follies
Isn't trademarking the shape of chocolate bunnies something like trademarking the color of orange juice?
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