While we are still snacking on our Christmas confectionery — or a determinedly trying to stay away from everything that is calorific, this Kat has finally found a quiet moment to translate and summarize the General Court's recent "chocolate bunnies" decision(s) on which the IPKat reported here on 17 December 2010. The General Court of the European Union held on 17 December 2010 that the shapes of a chocolate bunny and chocolate reindeer wearing a red ribbon cannot be registered as Community trade marks for class 30 chocolate goods due to a lack of distinctiveness. The same applies for the shape of a chocolate bell with a red ribbon, a chocolate bunny and a chocolate mouse (cases: Chocoladefabriken Lindt & Sprüngli AG vs. OHIM (T-336/08, T-337/08, T-346/08 and T-395/08) and August Storck KG vs. OHIM, (T-13/09)). Between early 2004 to the end of 2005 Chocoladefabriken Lindt & Sprüngli AG applied to register four three-dimensional shape marks as Community trade marks which included the shape of a chocolate bunny with red ribbon featuring the colours red, gold and brown (T-336/08), the shape of a reindeer made of chocolate with a red ribbon featuring the colours red, gold and brown (T-337/08), the shape of a gold bell with a red ribbon (T-346/08) and the shape of a chocolate bunny in the colour gold (T-395/08). In June 2005, 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 (T-13/09). OHIM refused registration of all four marks citing a lack of distinctiveness. Lindt & Sprüngli and 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, the gold coloured packaging or the red ribbon of the Lindt & Sprüngli marks and the shape and colour of the Storck marks, as the case may be. As regards to the shape of the Lindt & Sprüngli marks, the court took the view that bunny, reindeer and bell were typical 'seasonal' shapes used for chocolate confectionery, in particular used for Easter and Christmas. In particular, the shape of the sitting bunny itself was not unusual for a rabbit and the shape of the rabbit's ears, eyes or whiskers did not change the fact that it was "always a bunny". Concerning the colour gold, the court held that other traders also used gold foil to wrap their chocolate confectionery. Regarding the question of acquired distinctiveness of the bunnies, this could only be shown for Germany which, in view of the court, was not sufficient to fulfill the criteria under Article 7(3) CTMR. The judges further found that there was also no reason to presume that Austrian and German consumers would perceive shapes differently compared to consumers from the rest of the EU. The court also rejected Lindt & Sprüngli's argument that chocolate bunnies had not been famous outside of Germany before 2004 and so had been distinctive per se in other EU countries. The judges held that it was well-known that Easter bunnies were also known outside of German speaking countries. In relation to the shape of the reindeer, the court conceded that it was not a naturalistic depiction of a living reindeer but stressed that chocolate animals were not unusual products and that they rarely were a naturalistic reproduction of the respective real animal but were simplified versions of the actual animal. Consequently, just like the bunny, the reindeer was not distinctive enough for registration. The court did, however, agree with Lindt & Sprüngli's criticism of the OHIM Board of Appeal's finding that chocolate goods needed to be packaged to be sold and thus need to be wrapped in foil to be commercialised. Here, the judges found that for reasons of hygiene chocolate goods were often sold in packaging when offered in supermarkets and other outlets but they did not agree with the Board of Appeal that these goods could only be sold when packaged – with the packaging giving the product its shape. The General Court drew a distinction between chocolate goods on the one hand and beverages on the other hand, which always required some kind of packaging to be sold. Chocolate goods though were also often sold without packaging, for example in sweet shops or in cinemas, where they were only packaged by the seller upon the point of sale. Concerning the use of the red ribbon, the court found that it was customary to decorate chocolate animals or their packaging with red ribbons or bells. Moreover, the colour red and the use of bells also had a religious connotation in the context of Easter. As a simple decorative element, a red ribbon with a bell hence completely lacked distinctiveness. 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. Consequently, the General Court dismissed Lindt & Sprüngli and Storck's appeals and confirmed OHIM's decisions to refuse registration of the four shape mark applications. Merpel thinks that somehow the idea a chocolate Kat Community trade mark still has a definitely distinctive feel to it ….
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