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EU Court refuses trademark for chocolate rabbits

In accordance with the Community Trade Mark Regulation the shape of a chocolate rabbit or reindeer with a red ribbon cannot be registered as a Community trade mark, the General Court (ECJ)  ruled on 17 Jan 2011. 

The Ruling comes after chocolate makers Lindt & Sprüngli AG and August Stork filed several unsuccessful applications before the OHIM. The ECJ deemed that those shapes and those of a small bell with a red ribbon, a chocolate rabbit and a chocolate mouse are devoid of any distinctive character In accordance with the Community Trade Mark Regulation. 

In line with the Regulations in place, a Community trade mark may consist of any signs capable of being represented graphically, such as words, designs, the shape of goods and their packaging. However, a mark which is devoid of any distinctive character cannot, in principle, be registered. 

In the present cases, the marks applied for could not be considered to be capable of identifying the commercial origin of the goods that they designate. The General Court noted that the lack of distinctive character results  in particular from the fact that the consumer will not be able to ascertain the commercial origin of the goods designated on the basis of the various elements making up the marks applied for, namely the shape, the gold wrapping or the red ribbon – for the marks applied for by Lindt & Sprüngli – and the shape and colour of the mark applied for by Storck.


Between February 2004 and November 2005, Chocoladefabriken Lindt & Sprüngli AG filed before OHIM (Office for Harmonisation in the Internal Market) four applications to register as Community trade marks the following three-dimensional signs: 

• the shape  of a chocolate rabbit with a red ribbon, in the colours red, gold and brown 


• the shape of a chocolate reindeer with a red ribbon, in the colours red, gold and brown 


• the shape of a small bell with a red ribbon, in the colours red and gold (T-346/08), and 

• the shape of a chocolate rabbit in the colour gold (T-395/08). 

On 10 June 2005, August Storck AG filed an application for registration of a three-dimensional Community  trade mark  representing a simple basic geometric shape of a rectangular block the upper side of which shows a relief in the shape of a mouse, in brown chocolate (T-13/09). 

OHIM dismissed those applications for registration in particular on the ground that the marks were devoid of any distinctive character. Lindt & Sprüngli and Storck brought actions against the decisions of OHIM before the General Court. 

The General Court noted, first of all, that the distinctive character of a mark means that that mark allows the goods for which registration is sought to be identified as originating from a particular undertaking and therefore to distinguish those goods from those of other undertakings. 

The General Court subsequently stated that the criteria for  assessment of the distinctive character of three dimensional trade marks consisting of the appearance of the goods themselves are not different from those applicable to other categories of trade mark. 

General Court - Justice and Application - Full Text  Case : T 336/08

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