The tussle for who own the rabbit will now be fought out in court.
After a judge ruled that a legal tussle over the right to use a rabbit mascot can proceed, the Duracell and Energizer bunnies are all set to fight it out in court over ownership.
Energizer claims that its rights to use a pink bunny to advertise batteries in the US have been violated by Duracell. Earlier, Duracell had failed in its bid to dismiss a lawsuit by Energizer over the right to use the bunny in marketing and advertisements. Energizer has the sole right to sell iconic rabbit-emblazoned batteries in the US even though Duracell’s bunny is 16 years older than Energizer’s having been born in 1973.
Duracell uses a pink bunny on battery packages while Energizer has a sunglass-clad, drum-beating bunny.
In a landmark rabbit-sharing deal between the two companies struck in 1992, Duracell had retained the European rights to the familiar bunny for marketing and advertisement purposes. However in recent months, packets of Duracell batteries featuring a rabbit have begun showing up in US stores after being imported from Europe and this is the basis which has driven Energizer to claim that its rights over the bunny mascot are being violated in the US.
The company also claimed that it was should not be liable if distributors send them lawfully to the United States, where a “Duracell Bunny” is incompatible with its branding strategy and added that many Duracell batteries are made at lower cost in other countries.
Energizer has been using a drumming bunny in US marketing since 1989 and advertisements and marketing content show the bunny claiming that its batteries will “keep going and going and going”. The company says that with Duracell using a similar looking logo would most likely confuse customers and damage the former’s business.
The suit has been described as , claimed Duracell, owned by billionaire investor Warren Buffett’s firm, Berkshire Hathaway. The company is not in a position to prevent the export of Duracell batteries to the US by distributors even though the company does not use the Duracell bunny in its advertising in the country.
The distributors, as mentioned by Duracell, are firms that its rival “directly or indirectly controls or over which Duracell has the ability to exercise control”, claims Energizer.
Energizer’s claim had a chance of succeeding if it could be shown that Duracell had a close relationship with its distributors, said US district judge Carol Jackson in St Louis who also ruled that Duracell had no basis with which to dismiss the suit.
Finding no sign that they sold batteries or were involved in the 1992 agreement, Jackson also dismissed claims against former Duracell parent Procter & Gamble and its Gillette unit.
After it emerged that dating app Tinder is to sue 3under, a rival app aimed at people seeking threesomes, the rabbit row between Duracell and Energizer is the second major trademark battle to get the go-ahead in a week.
(Adapted from The Guardian & Reuters)