Chocolate truly are part of the Christmas period…. even at the OHIM! Four decisions have been issued by the General Court on December 17, 2010 in cases T-336/08, T-337/08 T-346/08 and T-395-08 about the Lindt bunny displayed in gold and red colours, a shape of the reindeer, a red dibbon and the cholcolate bunny shape “nude” (shown below)…
The story however ended with …a refusal to register them as trademarks because they lacked distinctiveness for “chocolate goods” in class 30. The reasoning of the Court was in essence to point out that chocolate bunnies and reindeers are common for Easter. The shapes at hands were only simplified and truthful representation of the animals or allusive connation to Easter colors for Catholics and could not properly indicate one particular origin.
These decisions reflect a usual approach of the Community practice when it comes to registering shapes as trademarks. However granting a monopoly on one particular shape of sweets, especially the ones made for Christmas time by the chocolate industry, understandably requires reaching a special level of distinctiveness to emerge from the variations offered on the market at this time …
