Last year this blog reported the Federal Court decision in Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891, where Sundberg J upheld refusal trade mark registration of Guylian's seahorse-shaped chocolate. One cute chocolate looks much like another and thus does not gain a shape mark.
IPKat now reports that the General Court of the European Union in cases T-336/08, T-337/08, T-346/08, T-395/08 Chocoladefabriken Lindt & Spruengli v OHIM and T-13/09 Storck v OHIM has ruled that chocolate rabbits, reindeer, mice and small bells - like Guylian's chocolate sea creatures - lack distinctiveness and thus fail to meet requirements for shape protection under the Community trade mark regime (ie EU-wide trade mark protection).
Lindt had sought to trade mark the shape of a plain chocolate lapin. It had also sought to trade mark chocolate reindeer and rabbits wrapped in gold foil with a red ribbon around their little chocolate necks. It wanted protection for the ribbon and attached bell. Storck had sought a Community trade mark for the shape of a chocolate mouse.
According to the Court the shapes are devoid of any distinctive character: rabbits, reindeer and mice are typical shapes in which chocolate and chocolate goods are presented at Christmas and Easter. Presumably the same would be said of marzipan pigs and jelly snakes. Ribbons and bells are also insufficiently distinctive.
There's a short book - or at least a conference paper - to be written on trade marking confectionary.
