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Thursday, 6 September 2012

BREAKING NEWS: Storck can't register mouse

STOP PRESS: the full judgment is now available on Curia in French and German.

Court says no to mouse.  In January 2011 Kat team member Birgit brought news of the failure of a variety of chocolate animals to secure the protection of a Community trade mark. In Case T-13/09 August Storck KG v OHIM the animal in question was a chocolate mouse. The decision of the General Court, dismissing Storck's appeal against refusal of registration, was succinctly summarised by Birgit thus:
"... August Storck AG applied to register a simple rectangular shape made of chocolate which included on its upper side a relief of a mouse which featured the colour brown as a three dimensional Community trade mark .... OHIM refused registration ... citing a lack of distinctiveness. ... Storck took the matter to the General Court which in turn upheld OHIM’s decisions not to register the marks.

The General Court stressed that distinctiveness of a trade mark meant that the mark applied for, should be able to identify goods as originating from one trader and so distinguish them from goods of another trader. The court also emphasized that the criteria used for determining the distinctiveness of three-dimensional marks, which can consist of the goods themselves, were no different to the criteria used to assess the distinctiveness of other categories of trade marks.
However, in the current cases the mark applied for could not be seen as suitable to identify the trade origin of the goods covered. This particularly true due to the fact that consumers could not conclude the trade origin of the marks from their different individual characteristics, namely .. the shape and colour of the Storck marks ...
...
In view of the court Storck’s mark consisted of a combination of obvious and typical characteristics of the goods covered and did not have a strong individual personality. The court found that the mark was a variant of the typical basic shape used in the sweets sector and did not depart sufficiently from the norm or customary shape in the sector to distinguish Storck’s goods from those of other sweets manufacturers. While the court conceded that some 'human-like' representations of animals can be distinctive enough to qualify for trade mark registration, Storck’s rather basic stylized mouse on top of a basic rectangular block did not depart sufficiently from the usual design of such products".
Thanks to Stephanie Bodoni (Bloomberg) this Kat has heard that today the Court of Justice of the European Union has dismissed Storck's last-chance appeal. At the time of posting, the judgment has not been made available and there is not yet a Curia press release.

Merpel's bemused by the whole thing. To her, the beast in question looks more like a teddy bear ...

2 comments:

Tove Graulund said...

And Merpel should after all know what a mouse looks like.

Anonymous said...

Compare and contrast this chocolate mouse:

http://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/o30207.pdf

which was considered registrable in the UK (by the AP), but then again, the UK case was not plainly the goods themselves and also had the benefit of a large 'milk spill'......

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