Chocoladefabriken Lindt & Sprüngli v OHIM
The Court of Justice has today confirmed that the Lindt’s attempt to appeal the decision to refuse the registration of the shape of their chocolate bunnies has been unsuccessful.
A press release by Curia reporting the decision today reads as follows:
According to the Community Trade Mark Regulation the shape of goods or their packaging can constitute a Community trade mark. However, a mark which is devoid of any distinctive character cannot, in principle, be registered.
On 18 May 2004, the company Lindt & Sprüngli AG filed an application for a Community trade mark with OHIM (Community trade mark office) for a 3D sign representing the shape of a chocolate rabbit with a red ribbon.
OHIM dismissed the application, in particular on the ground that the mark applied for was devoid of any distinctive character. Lindt challenged that decision before the General Court, which dismissed the application, concluding that OHIM had not erred in law in its decision.
In our March 2011 newsletter, we reported that General Court decision. Lindt then brought an appeal against that judgment before the Court of Justice.
The Curia press release continues:
In its judgment delivered today, the Court rules that the General Court did not err in law by concluding that the OHIM’s refusal to register the mark was valid.
The Court recalls 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. In that regard, the Court 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 dismisses the appeal.
This appears to be the final straw in a long battle in which Lindt have ultimately failed to convince the Courts that their bunny shape is registrable. The decision once again emphasises the large burden placed on proprietors to show that Community trade marks have acquired distinctive character through use throughout a substantial part of the EU.