Day of Judgment for Chocolate Bunnies

If you want to know whose
bunny this is, you have to
read the small print ...

It has often been said that the Day of Judgment will be accompanied with a great weeping and a gnashing of teeth.  Well, today was judgment day for a well-known, much-loved but dubiously distinctive chocolate rabbit and, while there may have been some wailing from the general vicinity of Lindt & Sprüngli, teeth might have been more involved in noshing than gnashing, as Europe's consumers prepare for a world in which they will be faced with a market in which they must choose between any number of branded and presumably generic chocolate bunnies.  This is the result of Case C-98/11 P Chocoladefabriken Lindt & Sprüngli AG v OHIM, which (at time of writing) has not yet been made available in English [but it's in English now, here. A katpat to Luis Gimeno for being first to pull the trigger!].

According to today's Curia press release,

"The shape of a chocolate rabbit with a red ribbon cannot be registered as a Community trade mark

The Court of Justice confirms that this shape is devoid of any distinctive character 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 ... 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.

Lindt brought an appeal against that judgment before the Court of Justice.

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".

You can read the decision here in German.  Fortunately the IPKat has a team member, Birgit, who is both a native German-speaker and an expert in all things to do with the registration of chocolate rabbits as trade marks (for background to this decision, see Birgit's excellent post here). If there is anything worth adding to this brief post, rest assured that Birgit will add it.

How to make a chocolate Easter bunny here
How to make a chocolate Zombie bunny here