This Easter saw yet another development in the Lindt bunny trade mark saga. As reported in the January edition of our E-Bulletin, at Christmas time last year the EU General Court held that the shape of Lindt's Easter bunnies, together with the shape of a reindeer wrapped in gold foil with a red ribbon and a small bell, lacked distinctive character for chocolate goods and that consumers would not be able to ascertain the origin of the shapes on the basis of the various shapes making up the marks. The court commented that a rabbit, a reindeer and a small bell were typical shapes in which chocolate and chocolate goods were presented, particularly around Easter and Christmas, and that other traders wrapped their chocolate goods in gold foil. It also found that it was also common to decorate chocolate animals with red ribbons and small bells. On that basis the General Court held that Lindt's Easter bunny could not be registered as a Community trade mark (CTM).
Just before Easter this year Lindt lodged an appeal against the EU General Court's decision.
The first ground of appeal concerns the Court's assessment of the mark's distinctiveness. Lindt argues that neither the assessment of the mark's distinctive character by the Office for Harmonisation in the Internal Market (OHIM) nor the General Court satisfied legal requirements as those assessments were based upon flawed assumptions. In particular, Lindt states that OHIM's finding that a chocolate Easter bunny is a typical shape for Easter in all member states of the EU was incorrect and that OHIM's presumption that this was not an issue in dispute was incorrect. Lindt contends that they had always disputed this assertion both expressly and by providing evidence to the same effect. Lindt argues that OHIM and the General Court failed to take into account the substantial evidence Lindt provided and the fact that they disputed the assertion. Similarly, Lindt argues that it cannot be asserted that the use of gold foil to wrap chocolate Easter bunnies is usual on the market as their evidence showed that only three other kinds of Easter bunny are wrapped in gold foil. Lindt also argues that the assumption made by the General Court that the mark had no distinctive character throughout the EU was unfounded on the basis that the mark is in fact registered in 15 Member States.
The second ground of appeal concerns the ruling of the General Court that the mark must have acquired distinctive character through use throughout the EU.
Lindt argues that whilst it is right that a CTM application would fail if a mark is deemed to lack distinctive character in just one state it is not correct (contrary to the decision of the General Court) that in order for a trade mark which is considered to lack inherent distinctive character to qualify for registration across the EU it needs to acquire distinct character through use in every member state for which it is not inherently distinctive. Lindt argues that adopting such a position is not in line with the principle of homogeneity of CTMs; that in an assessment of the registerability of a mark the EU should be regarded as a common homogeneous market; and that the test should be whether or not the mark is distinctive across the whole of the EU.