Action brought on 18 August 2008 - Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of an Easter bunny made of chocolate)

(Case T-336/08)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2008 (Appeal Case R 1332/2005-4); and

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing an Easter bunny made of chocolate, for goods in Class 30 (Application No 3 844 446).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94, ¹ as the trade mark applied for has the necessary distinctive character and its availability does not have to be preserved. Furthermore, the trade mark applied for demonstrates distinctiveness acquired through use for the purposes of Article 7(3) of Regulation No 40/94.

____________

¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).