Some holiday products are instantly recognizable even without a logo, think a particular chocolate bunny, a signature ornament shape, or a distinctive holiday box. That “look” can be protected under trade dress and sometimes even as a shape trademark.
In this third post, we’re talking about holiday product designs and one of the most famous examples: the Lindt Gold Bunny.
What Is Trade Dress?
Trade dress is the overall look and feel of a product or its packaging that tells consumers where it comes from, like the shape of a bottle, color scheme, or arrangement of design elements.
To be protected, trade dress generally must:
- Be distinctive (consumers recognize it as a source indicator), and
- Be nonfunctional (its primary role isn’t just to make the product work better).
The Lindt Gold Bunny vs. the World
Lindt’s foil-wrapped chocolate bunny with a red ribbon and tiny bell is a case study in holiday trade dress and trademark law.
Over the years, Lindt has:
- Registered various shape and packaging trademarks for its bunny in a number of countries.
- Fought competitors selling gold-wrapped chocolate bunnies that allegedly mimic its look.
Courts have sometimes disagreed about how far that protection goes:
- The Court of Justice of the European Union previously refused a broad EU-wide registration for Lindt’s 3D bunny mark, finding it lacked distinctiveness at that level.
- Later, Germany’s Federal Court and the Swiss Federal Supreme Court recognized that the specific golden foil color and shape of the Lindt Gold Bunny had acquired distinctiveness and could function as a trademark, leading to injunctions against copycat products and even destruction of infringing stock.
The message is clear: in some markets, Lindt’s bunny isn’t just cute, it’s legally protected.
Holiday Trade Dress Beyond Bunnies
The Lindt case is part of a broader trend: companies using trade dress and color marks to protect signature holiday items.
Examples include:
- Special edition holiday packaging (red and green tins, ornament-shaped boxes) that consumers associate with particular brands
- Distinctive bottle shapes for seasonal beverages
- The overall style of branded gift sets marketed each December
While not every holiday design will qualify, the more consistent and distinctive the look, the stronger the argument for trade dress protection.
Where the Law Draws the Line: Functionality & Generic Designs
Trade dress can’t be used to lock up functional features, for example:
- A specific cup lid that prevents spills
- The shape of a hook that lets ornaments hang better
Even if consumers recognize those features, they remain off-limits as trade dress because granting a monopoly would hurt competition.
Similarly, common holiday imagery (plain Christmas trees, simple stars, generic red-and-green color schemes) can be too generic to protect on their own, unless combined in a uniquely recognizable way.
Practical Tips for Businesses
If your company sells holiday products:
- Invest in a consistent look. Repeated use of a distinctive design or packaging can help you build protectable trade dress over time.
- Document your marketing. Evidence that consumers associate the design with your brand can be critical in a dispute.
- Avoid “too close for comfort” look-alikes. If a competitor’s seasonal product looks strongly associated with another well-known brand, there may be trade dress risk.
- Consider clearance before launch. A quick legal review is often cheaper than a redesign or a lawsuit after your product hits the shelves.
Griffith Barbee can help evaluate whether your holiday designs are protectable trade dress or whether they might be a little too inspired by someone else’s bunny.
Related Posts:
‘Merry Christmas, Ya Filthy Animal’: Holiday Phrases, Slogans, and Trademarks