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Golden chocolate rabbit cannot be trademarked

No evidence that Easter bunny shape had acquired distinctive character through use

24 May 2012

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The shape of a chocolate rabbit with a red ribbon cannot be registered as a Community trademark, the European Court of Justice has ruled.

Confirming an earlier decision by the General Court, the Luxembourg judges said the shape was devoid of any distinctive character.

“Only a mark which departs significantly from the norm or customs of the industry and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character,” the court said in case C-98/11P Chocoladefabriken Lindt & Sprüngli AG v OHIM.

The appeal judges upheld the approach taken by the first instance court, saying it had correctly assessed the elements required for the registration of a three-dimensional mark consisting of the shape of a product.

“The General Court undertook a detailed analysis of each of the three elements of the mark for which registration is sought, namely the shape of a sitting rabbit, the gold foil in which the chocolate rabbit is wrapped and the pleated red ribbon to which a small bell is attached, to conclude… that each of them is devoid of any distinctive character,” the court said.

Today’s judgment brings to an end a procedure started in May 2004 when Lindt applied for the registration of its chocolate Easter bunny as a three dimensional trademark.

The EU’s trademark office, the Office for Harmonisation in the Internal Market, dismissed the application because the mark applied for was devoid of any distinctive character.

OHIM’s findings were endorsed by the EU’s General Court, which dismissed an appeal by the Swiss chocolate maker, saying the office had not erred in law.

In a further and final appeal the Court of Justice said distinctiveness of the mark should be assessed by reference to the goods or services for which registration was sought and to the perception of the relevant public.

The court added that Lindt had not proved either that the shape had acquired distinctive character through use.

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