Lindt Can’t Corner the Market on Rabbit Shape

     (CN) – Upholding a lower court ruling that “a chocolate Easter bunny and the gold wrapping are common phenomena on the market,” the EU high court refused Thursday to let Swiss chocolatier Lindt trademark chocolate bunnies – even ones with red ribbons.
     Lindt & Sprüngli AG appealed the decision by the Office for Harmonization in the Internal Market (OHIM) to deny a trademark for a three-dimensional sign in the shape of a chocolate rabbit.
     OHIM ruled that the sign was devoid of any distinctive character, and the EU General Court upheld that decision in December 2010.
     Since many companies make similar bunnies, it is impossible to trademark Lindt’s product, the court ruled.
     The Court of Justice agreed, saying that neither OHIM nor the General Court misstepped.
     “After having recalled the essential characteristics for determination of distinctive character of a three-dimensional mark consisting of the shape of a product, the General Court undertook a detailed analysis of each of the three elements of the mark for which registration is sought, namely the shape of a sitting rabbit, the gold foil in which the chocolate rabbit is wrapped and the pleated red ribbon to which a small bell is attached, to conclude … that each of them is devoid of any distinctive character,” the ruling states
     “[Lindt] has failed to establish that the mark has inherent distinctive character and that that was the case throughout the European Union. For that reason, the Court of Justice cannot uphold the appellant’s argument, and the statistics furnished in support of its argument, that the mark for which registration is sought has inherent distinctive character in 15 Member States and that, therefore, in those States, the acquisition by it of distinctive character through use does not have to be shown,” the court added.
     The high court also rejected Lindt’s claims that it acquired the trademark through use in national markets, saying that the company “has not sufficiently proved the acquisition, by the mark for which registration is sought, of distinctive character through use throughout the European Union.”

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