Brussels, 08/07/2009 (Agence Europe) - In a decision made on Wednesday 8 July, the Court of First Instance confirmed the cancellation of the registration of the Mars company's chocolate bar, “Bounty”, as a Community trade mark. The chocolate manufacturer was unable to demonstrate that the three arrows or “V” shapes on the upside of the Bounty bar and its rounded ends made it immediately recognisable to the public at large in all the member states selling the chocolate bar. (Case T-28/08).
On 24 April 2003, following an application by Mars Inc., the manufacturer of the Bounty chocolate bar, OHIM, the Office which controls Community trade marks, registered the three-dimensional shape of that bar as a Community trade mark. In December 2003, Ludwig Schokolade, a German chocolate maker, filed an application for a declaration that the Community trade mark was invalid on the grounds that it was devoid of any distinctive character. In October 2007, OHIM declared the registration of the trade mark in question invalid because the mark did not have the distinctive character required as its appearance does not depart significantly from the norms and customs of the relevant sector. Furthermore, it found that the documents submitted by Mars were insufficient to demonstrate distinctiveness acquired through use in connection with the goods concerned. Mars brought an action against that decision before the Court of First Instance.
With this ruling, the Court of First Instance rejects Mars' appeal and confirms OHIM's position on the similarity of Bounty's appearance with other chocolate bars on the market, as well as the organisation's position on the lack of proof provided by Mars. The latter backed up its claim with research carried out into the British, Belgian, French, German, Italian and Dutch markets. In the absence of equivalent research in the other nine member states at the time (2003, date of registration), the Court of First Instance deems that recognition of Bounty in the whole of the region was not demonstrated. Mars can lodge an appeal against this decision in the next two months, which will have to be limited to legal points as no additional evidence can be used at this stage. (C.D./transl.rh)