THE EUROPEAN COURT of Justice has ruled that chocolate company Lindt cannot trademark its famous chocolate bunny wrapped in gold foil in the EU – saying its rabbit does not carry enough distinctive features to be protected.

The Swiss chocolatier has been told that its gold-wrapped rabbit, a popular seller at Easter, does not bear enough unique features that allow its design to be considered inviolable.

The ruling came after a lower European court, the General Court, said the shape and colours of the rabbit were not all that different from other products available on the market.

Lindt had taken the action after an Austrian rival began producing chocolate bunnies with a similar gold foil packaging – which Lindt saw as an infringement of its own format, which has been on sale since 1952.

In its ruling, the ECJ said it had previously found that a trademark could only be registered throughout the EU if a company could provide evidence that the mark had acquired “distinctive character” in a part of the EU where it had not previously been enjoyed.

Lindt had claimed that its golden bunny had become unique in at least 15 EU member states, but because Lindt had not argued that its bunnies enjoyed this status in every EU state, its argument could not be permitted.

“The assessment of acquisition by a mark of distinctive character through use cannot be based on individual national markets,” the court said.

Lindt had also argued that the concept of a chocolate Easter Bunny was virtually known outside Germany before its products were launched, and that a chocolate rabbit had “an inherent distinctive character in the other Member States”.

The court dismissed this argument, saying it was “common knowledge” that chocolate rabbits were not unknown outside Germany.

Ironically, Lindt had already won a case in an Austrian court stopping production of the local rival’s similar product – a ruling which could now be overturned by the ECJ’s finding.