What is "Bad Faith?" Plus, Lindt's 3D Trademark on Chocolate Bunny

Swiss chocolate maker Lindt is trying to enforce in Europe a 3D trademark it registered for a foil-wrapped hollow chocolate Easter bunny with a bell tied around its neck. The competitors it has sued for infringement argue:

1. Lindt acted in "bad faith" by registering a trademark for something (hollow chocolate bunnies) that had been produced since the 1930s (tomorrow a court in Austria will rule on the definition of "bad faith")
2. Hollow chocolate bunnies must be manufactured in the same shape as Lindt's because of function - most other designs will collapse

Regardless of the chocolate, does not the foil, ribbon and bell give the Lindt bunny a distinctive 3D appearance that is not merely "functional?"

Read the Wall Street Journal article and Techdirt's comments, with which I tend to disagree.

Also, how should "bad faith" be defined? Considering an altogether different example, do you think memory IC chip designer Rambus acted properly or in "bad faith" when it registered patents for industry standards while such standards were being set by an industry committee?

The posts on this blog confer no rights or warranties. The opinions expressed on this site are my own and may not represent those of my firm. © 2009, Cedar Boschan. To request permission to reproduce, please contact boschan@royaltyauditors.com.