Community trade mark Absolute ground for refusal Lack of distinctive character Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) Lack of distinctive character acquired through use Invalidity proceedings Right to be heard Article 7(3) of Regulation No 40/94 (now Article 7(3) of Regulation No 207/2009) Community three dimensional mark Shape of a chocolate bar Articles 73 and 74 of Regulation No 40/94 (now Articles 75 and 76 of Regulation No 207/2009)
Sumário
Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009.
Mars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Community trade mark - Invalidity proceedings - Community three-dimensional mark - Shape of a chocolate bar - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) - Lack of distinctive character acquired through use - Article 7(3) of Regulation No 40/94 (now Article 7(3) of Regulation No 207/2009) - Right to be heard - Articles 73 and 74 of Regulation No 40/94 (now Articles 75 and 76 of Regulation No 207/2009).
Case T-28/08.
Texto da decisão
Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 – Mars v OHIM – Ludwig Schokolade (Shape of a chocolate bar)
(Case T-28/08)
Community trade mark – Invalidity proceedings – Community three-dimensional mark – Shape of a chocolate bar – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) – Lack of distinctive character acquired through use – Article 7(3) of Regulation No 40/94 (now Article 7(3) of Regulation No 207/2009) – Right to be heard – Articles 73 and 74 of Regulation No 40/94 (now Articles 75 and 76 of Regulation No 207/2009)
1. Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article 7(1)(b) of Regulation No 40/94 – Marks devoid of distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 30-34)
2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks which are devoid of distinctive character, descriptive or commonplace – Exception – Acquisition of distinctive character through usage (Council Regulation No 40/94, Art. 7 (3)) (see paras 47, 54, 66, 68)
3. Community trade mark – Decisions of the Office – Observance of the rights of the defence (Council Regulation No 40/94, Art. 73) (see para. 89)
Re:
| ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 October 2007 (Case R 1325/2006-2), relating to invalidity proceedings between Ludwig Schokolade GmbH & Co. KG and Mars, Inc. |
Information relating to the case
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Registered Community trade mark subject of the application for a declaration of invalidity: |
A three‑dimensional mark representing a chocolate bar for goods in Classes 5, 29 and 30 – Community trade mark No 818864 |
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Proprietor of the Community trade mark: |
Mars, Inc. |
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Party requesting the declaration of invalidity of the Community trade mark: |
Ludwig Schokolade GmbH & Co. KG |
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Decision of the Cancellation Division: |
Rejection of the request for a declaration of invalidity |
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Decision of the Board of Appeal: |
Annulment of the Cancellation Division’s decision and declaration of invalidity of the Community trade mark |
Operative part
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Mars, Inc. to pay the costs. |