CJEU rules that Lindt bunny is devoid of distinctive character

The Court of Justice of the European Union (CJEU) has ruled that Lindt cannot register a three-dimensional community trade mark for its gold packaged chocolate bunny with a red ribbon.

The application for a community trade mark was originally filed in 2004 and was rejected by the Office for Harmonisation in the Internal Market (OHIM) in 2005. This was because it was considered to be devoid of any distinctive character. Under the Community Trade Mark Regulation, trade marks which are devoid of any distinctive character should not be registered.

This decision was appealed to the OHIM Board of Appeal and the appeal was unsuccessful. Lindt then appealed to the General Court of the CJEU in 2008. The court looked at each of the characteristics of the mark, namely the shape, the colour and the ribbon, separately before making a global assessment. The court held the public would not consider these characteristics to be indicators of the commercial origin of the product, as they are not substantially different from the wrappers of goods used commonly in the trade.

In addition, the General Court stated that the graphic elements such as the eyes, whiskers and paws of the bunny are everyday elements used in all shapes of chocolate rabbits. It ruled that these features are not of an artistic level which would lead to a consumer perceiving them as an indication of the origin of the goods. As a result, it held that the mark was not registrable.

Lindt also argued that, as the chocolate Easter bunny is not well known outside Germany, it has acquired distinctive character in other Member States, if not in Germany. However, the General Court stated that, in the absence of strong evidence to the contrary, the impression created in the mind of the consumer regarding a mark will be considered to be the same throughout the European Union. As a result, the court said that for a community trade mark to acquire distinctive character through use, it must do so in the EU as a whole.

The OHIM Board of Appeal had previously held that there was no reason to presume consumers in Germany perceive the shape differently from consumers in other Member States. This was subsequently confirmed by the General Court.

This decision was then appealed to the CJEU who ruled that the General Court did not err in law in upholding OHIM’s refusal to register the mark. As the CJEU can only review errors in law and not in fact, it did not re-evaluate the distinctive character of the mark.

The court stated that the distinctiveness of a mark must be assessed firstly by reference to the goods or services for which registration is sought, and secondly by reference to the perception of the public. It was held that the General Court correctly applied these criteria, and the appeal was dismissed as a result.

This case highlights the importance of distinctive character in Community trade mark applications, and that the assessment of distinctive character will be made by reference to the Community as a whole, rather than individual Member States.