The General Court of the European Union has dismissed Lindt’s appeal against the examiner’s decision refusing registration of its 3D reindeer, bunny and bell as Community trade marks. Storck’s chocolate mice also suffered the same fate.
Why? Such shapes are devoid of distinctive character as they are the typical chocolate-shaped goods that one finds in their stocking at Christmas or receives as a gift at Easter, thus they fail to meet the requirements for shape protection under the Community trade mark regime. Unfortunately, the red ribbon collar and little silver bell didn’t help the reindeer and bunny leap over the distinctiveness hurdle either.
Was it the right decision? Well, it was certainly consistent with previous case law (think back to Guylian’s seahorse-shaped chocolate). Also, bearing in mind the ultimate purpose of a trade mark, to act as a badge of origin, the decision must be correct.
Posted by Sarah Fellows, who specialises in non-contentious intellectual property, and IT commercial agreements; familiar with a range of sectors, including technology, biosciences, retail and education.
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