Easter chocolate bunnies

by DLA Piper

Easter is rapidly approaching and many of you have probably already stocked up on eggs and chocolate bunnies.

While you will be enjoying them, maybe you will be thinking of the calories that you are taking in, the taste of the Swiss products (if you are lucky enough to receive gifts of quality), or, if you are an IP enthusiast, that your chocolate bunny cannot be protected as a three-dimensional mark, according to the Court of Justice of the European Union (CJEU). 

It is worth mentioning the principles established – a couple of years ago – by the CJEU in the case related to the well-known Lindt’s chocolate gold bunny (see here).

On 18 May 2004, Lindt filed an application for registration in Class 30 (‘Chocolate and chocolate products’) of a Community three-dimensional trademark (reproduced below) consisting of the shape of a chocolate rabbit with a red ribbon and which, according to the description in the application, was red, gold and brown.

The OHIM examiner rejected the application, finding that the sign at issue was devoid of any distinctive character. Such decision was confirmed by the Board of Appeal and the General Court. The case was then brought before the CJEU.

In its decision of 24 May 2012 in C‑98/11, Chocoladefabriken Lindt & Sprüngli AG v. OHIM (see here), the CJEU held that the analysis of the trademark carried out by the General Court was consistent with the criteria established by settled case law on distinctive character of 3D shape marks (e.g. Judgment of the Court of 29 April 2004 in Joined Cases C-456/01 and C-457/01, Henkel KGaA v. OHIM). As a consequence, the CJEU upheld  the decision of the General Court confirming that the shape of a sitting rabbit, the gold foil wrapping the chocolate rabbit and the pleated red ribbon with a small bell attached were devoid of any distinctive character.

As for the shape of a sitting or crouching rabbit, the CJEU established that the General Court had correctly considered it to be a typical shape for chocolate rabbits and, therefore, devoid of any distinctive character. Also, the CJEU held that the General Court did not err in establishing that the gold foil wrapping the bunny, the red ribbon and the bell were common to decorate chocolate animals. Finally, the CJEU confirmed the General Court’s decision that, on a global assessment, none of the abovementioned element were sufficiently different such that a consumer would perceive them as being an indication of the origin of the goods. 

As for Lindt’s claim that the trademark had acquired distinctive character and was eligible for registration by virtue of the use which was made of it, the CJEU reiterated that a mark may only be registered if the conditions for registration are satisfied across the entire area in which the objection applies. For shape marks, this effectively means all parts of the EU, but Lindt had failed to prove that the sign had acquired distinctive character in all of the Member States at the date of filing of the application.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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