Judgment of the General Court (First Chamber) of 17 December 2010 – Chocoladefabriken Lindt & Sprüngli v OHIM (Shape of a chocolate rabbit with a red ribbon)

(Case T-336/08)

Community trade mark – Application for a three-dimensional Community trade mark – Shape of a chocolate rabbit with a red ribbon – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) – No distinctive character acquired through use – Article 7(3) of Regulation (EC) No 40/94 (now Article 7(3) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Exception – Acquisition of distinctive character through use – Three-dimensional mark (Council Regulation No 40/94, Art. 7(1)(b) and (3)) (see paras 59, 67-71)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 11 June 2008 (Case R 1332/2005-4), concerning an application for registration as a Community trade mark of a three-dimensional sign consisting of the shape of a chocolate rabbit with a red ribbon.

Information relating to the case

Applicant for the Community trade mark:	Chocoladefabriken Lindt & Sprüngli AG
Community trade mark sought:	Three-dimensional mark, representing an Easter bunny made of chocolate, for goods in Class 30 – Application No 3844446
Decision of the examiner:	Registration refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Chocoladefabriken Lindt & Sprüngli AG to pay the costs.