Rabbits - Chocoladefabriken Lindt & Sprungli v OHIM

In Case T-336/08 Chocoladefabriken Lindt & Sprüngli v OHIM (shape of a chocolate rabbit with a red ribbon) [2010] EUECJ T-336/08, the General Court  dismissed Lindt & Sprunglli's action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 June 2008 (Case R 1332/2005-4) concerning its application for registration of a three-dimensional mark comprising the shape of a chocolate rabbit with a red ribbon as a Community trade mark on the ground that the applications are devoid of distinctive character within the meaning of art 7 (1) (b) of the Community trade mark regulation (Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark).

The manufacturer appealed against that decision to the Court of Justice of the European Union essentially on the ground that there was no evidence for the conclusion that the "the shape of a sitting or crouching rabbit............... are one of the typical shapes that chocolate and chocolate products may take, particularly at Easter".   Lindt argued that its three-dimensional chocolate rabbit wrapped in gold foil had already been registered by 15 member states.  If the trade mark registrars of those states had found that it was distinctive, that ought to be good enough for OHIM.

In Case C-98/11 P Chocoladefabriken Lindt & Sprungli v OHIM  [2012] EUECJ C-98/11_P the Court of Justice dismissed the appeal.   Directing itself at paragraph [41] that "trade marks which are devoid of any distinctive character are not to be registered" and "that the distinctive character of a trade mark, within the meaning of that provision, must be assessed, firstly, by reference to the goods or services in respect of which registration has been sought and, secondly, by reference to the perception of them by the relevant public (see, inter alia, Henkel v OHIM, paragraph 35; Case C-25/05 P Storck v OHIM [2006] ECR I-5719, paragraph 25, and Case C-238/06 P Develey v OHIM[2007] ECR I-9375, paragraph 79) it concluded at paragraph [42] that

"Only a mark which departs significantly from the norm or customs of the industry and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 (Deutsche SiSi-Werke v OHIM, paragraph 31)".

It appeared to the Court of Justice that the General Court had "correctly identified and followed the criteria established by the relevant case-law in that regard."