The renowned chocolate manufacturer, Lindt & Sprüngli AG, had filed an application for the protection of their gold rabbit with a red ribbon as a 3-D Community trademark with OHIM (the Community trademarks office). The list of goods comprised “chocolate and chocolate products” in international class 30.
A three-dimensional mark is a mark consisting of a three-dimensional shape (including containers, packaging and the product itself).
In the bunny case (C-98/11 P), OHIM rejected the application stating that the 3-D figure did not possess sufficient distinctiveness to become registered. In other words, the shape and appearance of the 3-D trademark were considered too common and generic to become anybody’s exclusive right.
Lindt & Sprüngli, not happy with this decision, took the matter to the General Court, which came to the same conclusion as the administrative decision rendered by OHIM. Lindt filed an appeal with the Court of Justice, and they have recently come to a conclusion.
The Court of Justice agrees with the other instances and decided in favor of OHIM: The gold rabbit with a red ribbon simply does not qualify for the exclusive right, which a 3-D Community trademark registration conveys.
If Lindt & Sprüngli had added text on the bunny, such as “Lindt”, the trademark most likely would have become registered. The company also has applications and registrations to this effect. Such registrations, however, are not as strong in a potential trademark conflict, since the comparison between Lindt’s bunny and a competing bunny would have required a comparison between the text elements as well.
Finally, to complete the tale, Lindt also tried arguing before OHIM and the two courts that the shape and appearance of the gold bunny are so known to the consumers of the Community that the 3-D figure had acquired distinctiveness as a result of the use of the 3-D trademark. This argument also failed with the judges, since Lindt did not file sufficient evidence to show that the trademark was sufficiently known to consumers in all 27 Community countries.
Claus Marcussen, Attorney at Law
