Abmahnung erhalten?

No more bunny business

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It seems as if the European Court of First Instance has finally brought the bunny business to an end. The Court recently decided that 3D shapes of bunnies/hares or reindeer with a red collar made of chocolate are devoid of any distinctive character and can therefore not be registered as Community Trademark. The same applies for the shape of a bell with a red ribbon, a chocolate hare and a chocolate mouse (European Court of First Instance, Cases T- 336/08, T-337/08 and T-395/08 and T-13/09 August Storck KG v. OHIM).

It seems as if the European Court of First Instance has finally brought the bunny business to an end. The Court recently decided that 3D shapes of bunnies/hares or reindeer with a red collar made of chocolate are devoid of any distinctive character and can therefore not be registered as Community Trademark. The same applies for the shape of a bell with a red ribbon, a chocolate hare and a chocolate mouse (European Court of First Instance, Cases T- 336/08, T-337/08 and T-395/08 and T-13/09 August Storck KG v. OHIM).

According to the Trademark Regulations a Community Trademark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.
The Court held that the criteria for assessing the distinctive character of 3D-marks are no different from other categories of marks. However, account must be taken of the fact that the average consumer does not perceive the golden wrapping, the red collar or the shape and color as an indication of origin. Bunnies, hares, reindeer and bells are commonly used shapes for chocolate during Easter or Christmas season and other companies also use golden wrappings for their chocolate. The Court is of the opinion that it is common practice to decorate chocolate animals or their wrapping or containers with red ribbons and bells. As being decorative elements the red ribbon and the bell are devoid of any distinctive character.

The above decisions are in line with previous case law. Only 3D-marks which depart significantly from the norms or customs of the sector fulfill the essential function of indicating origin (see Deutsche SiSi-Werke v OHIM (Case C-173/04 P) and Storck v OHIM (Case C-25/05 P)).

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