Brussels, 25/05/2012 (Agence Europe) - The shape of a chocolate rabbit with a red ribbon cannot be registered as a Community trade mark. Contrary to the requirements of the regulation on the Community trade mark (Regulation CE No 40/94), this shape is devoid of any distinctive character.
With this ruling, delivered on 24 May (Case C-98/11 P), the Court of Justice of the EU dismissed an appeal by chocolate maker Lindt & Sprüngli AG (Germany) against the judgment of the General Court of the EU (T-336/08) upholding the rejection by the Office for Harmonisation in the Internal Market (OHIM) in 2005 of an application the previous year by the German company to have a 3D sign representing the shape of a chocolate rabbit with a red ribbon registered as a Community trade mark. Giving reasons for the rejection, OHIM argued that the mark applied for was devoid of any distinctive character and that it would not acquire a distinctive character through use throughout the EU, as EU rules demand, since the evidence produced related only to Germany. The General Court accepted the OHIM arguments on these two points and dismissed the Lindt & Sprüngli appeal against the decision. In its judgment, the Court found in favour of the General Court.
The Court notes that the distinctiveness of the mark must be assessed, first, by reference to the goods or services for which registration is sought and, secondly, by reference to the perception of the relevant public. It rules that the General Court correctly identified and applied those criteria by carrying out an evaluation both of current practices in the industry and the perception of the average consumer. As regards the acquisition of distinctive character through use of the mark applied for, the Court confirms the reasoning of the General Court which found that Lindt had not proved that distinctive character had been acquired through use across the EU. Consequently, the Court dismissed the appeal. (FG/transl.rt)