Pink Drummer Bunnies Duke it Out in Federal Court

On October 27, 2017, a Missouri federal judge ruled in favor of Duracell® in a case that was brought by rival battery company Energizer®.

For many people of a certain age in the United States, a fuzzy, pink, drum-banging bunny is only associated with the Energizer brand. Not many people know that Duracell was the first battery company to feature the pink drummer bunny in 1973 (an early Duracell commercial). Energizer later parodied the commercial with its own drumming pink bunny with sunglasses and found great success (First Energizer bunny commercial).

Energizer trademarked their bunny in 1997 and 2014. The trademark deal keeps Duracell from using its bunny in U.S. ad campaigns; however, Duracell continues to use its pink bunny mascot internationally. In February of 2016, Energizer filed suit against Duracell for breach of contract, trademark infringement, contributory trademark infringement, unfair competition, and trademark dilutions. The company alleged to have noticed some Duracell products being sold, within the U.S., featuring the Duracell bunny on the packaging, which violates their agreements. Duracell claimed these products were gray market products or counterfeit, and they contacted the businesses that were selling the offending products. Many businesses honored Duracell’s requests to take the products off their shelves, but some did not oblige.

Energizer failed to admit evidence that Duracell has the “power to govern policies and management of any store” selling their products. Judge Audrey Flessig ruled on Friday that “Duracell does not exercise control over the more than 30 stores selling their batteries with bunny packaging…” Therefore, Duracell could not be held for violating the trademark agreements.

Meanwhile, Duracell has also filed its own lawsuits against multiple retailers, including Ocean State Job Lot®, for improper sales of their foreign batteries featuring the pink bunny in the American market. The complaint by Duracell against Ocean State Job Lot claims that the products are materially different from the U.S. approved products and the confusion and disappointment in consumers will damage the reputation of the large battery company.

For now, Duracell is safe from trademark violations caused by retailers.


Sources:

Dave Simpson, Drumroll Please! Duracell Wins Bunny Battle with Energizer, Law360 (LEXIS), Oct. 27, 2017.

Robert Storace, Duracell Sues Retailer for Trademark Infringement, Connecticut Law Tribune (LEXIS), July 20, 2017

Image: http://www.houseofbatteries.co.uk/assets/sitefiles/site-19/images/batterybunnies.jpg

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