Lindt’s Chocolate Bunny Shape not Protectable as European Trademark, Says ECJ

Today the European Court of Justice (“ECJ”) upheld the judgment of the General Court of the European Communities that Lindt & Spruengli AG was not entitled to register as a European Community trade mark the three-dimensional shape of a chocolate rabbit with a red ribbon. Chocoladefabriken Lindt & Sprüngli AG v. OHIM, Case C-98/11 P (Eur. Ct. Justice May 24, 2012). The court explained that Article 7(1)(b) of Regulation No 40/94 prohibits the registration of trade marks that lack any distinctive character. The General Court considered the mark–consisting of 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–and determined that it was not distinctive. Among other things, the General Court agreed with (1) the finding by the trade mark appeal board that “rabbits are one of the typical shapes that chocolate and chocolate products may take, particularly at Easter;” and (2) the conclusion of the trademark examiner that it “is common to decorate chocolate animals or their wrapping with bows, ribbons and bells and that, therefore, small bells and bows are common elements in the case of chocolate animals.” In dismissing Lindt’s appeal, the ECJ declined what it characterized as Lindt’s invitation to “substitute its own assessment of the facts for that of the General Court.”

Lindt's Chocolate Bunny
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