“Lindt v. Lidl (Lindt Bunny)”

• 1. A survey that has been scientifically conceived and correctly conducted with regard to the persons questioned and the methods used is the most suitable means for proving in civil proceedings that a trade mark has acquired secondary meaning.

• 2. This applies irrespective of whether the survey is introduced into the proceedings by a party.

• 3. It is a document (a submission) that is capable of proving a legally relevant fact and thus a deed within the meaning of Art. 177 et seq. Code of Civil Procedure (CCP).

• 4. As a document, the demoscopic survey is subject to the free appraisal of evidence (Art. 157 CCP). Thus, the content of the survey as well as its procedure and implementation may be taken into account in the context of the specific appraisal of evidence.

• 5. Although the author of a survey on secondary meaning under trade mark law does not make an assessment as an expert, but merely reproduces the objective data obtained, a close relationship between a party and the person who conducts and is responsible for the survey is not unproblematic and any concerns in this regard must be taken into account (only) in the course of the concrete assessment of evidence, by analogy with the principles on testimony.

• 6. Surveys carried out on the internet are suitable as evidence of secondary meaning.

• 7. A sign’s secondary meaning can be well known and thus, as a known fact, not require proof (Art. 151 CCP).

• 8. A trade mark deposited without a colour claim (and that has acquired secondary meaning in this way) claims protection for the sign in all colour combinations.

• 9. It is not to be assumed that the relevant public has a heightened (here: due to the fact that the products are primarily offered only seasonally, at Easter), but rather an average level of attention, and it cannot be assumed that the targeted consumers have a pronounced ability to distinguish (here: between high-quality or cheap chocolate).

• 10. For signs that have become strong over the years as a result of the (well-known) secondary meaning a strict standard of assessment must be applied with regard to the identity of the goods.

• 11. Although printed elements can also determine the overall impression in the case of combined shape marks, in the case of foodstuffs it cannot automatically be assumed that the purchaser acting with average attention will orientate himself by reading the text; rather it will choose on the basis of the shape and the features without necessarily consulting a label to be sure. Thus, a label does not eliminate the likelihood of confusion.

• 12. A donation to a public welfare institution in lieu of the destruction of the infringing goods cannot be accepted as the transfer of trade mark-infringing objects to a charitable organisation requires the consent of the trade mark owner.