A trying area for trade marks is whether they identify the origin of the goods, or someone just likes what they look like. The problem is greatest with three dimensional marks. Swiss confectioners have been struggling, in particular with chocolates shaped like rabbits and reindeers.
With Easter round the corner, which rabbit is in the hat?
Lindt wanted to register a rabbit or two as a trade mark – that is the rabbit’s three dimensional shape. In an astute analysis, the EU General Court noted that a rabbit, reindeer and a small bell are typical shapes for chocolate and chocolate goods at, for example, Easter and Christmas; chocolates and chocolate goods are often wrapped in gold foil; and they are often decorated. So the shape, gold foil, red ribbon and small bell had no distinctive character.
The outcome: you cannot monopolise a rabbit, reindeer or bell, at least for chocolates. The trade mark applications were refused.
Chocoladefabriken Lindt & Sprüngli AG v OHIM, Cases T-336/08, T-337/08, T-346/08 and T-395/08; August Storck KG v OHIM Case T-13/09