Lindt recently failed in its attempt to stop a competitor,
Riegelen, from selling Easter confectionery that looks remarkably
similar to Lindt's famous chocolate bunny. Lindt relied on the
fact that it has a German trade mark registration for a
sitting bunny wrapped in gold foil and featuring a red ribbon and a
bell, but the court held that bunnies are old hat - especially come
Easter-time - and that there was therefore no likelihood of
confusion.
Shape trade marks, aka 3-D trade marks, are problematic. Although
the shape of a product can clearly be registered as a trade mark
– the definition of a 'mark' in the Trade Marks Act
includes 'shape' – the fact is that it's very
hard to register product shapes as trade marks. For
starters, the law says that a shape can't be registered if
it's functional - an application to register the Lego block
failed because it was deemed to be functional. And the courts seem
to apply a stricter test for shapes (and indeed
