ECJ Rules On Requirements For Distinctive Character Necessary To Protect "Gold Bunny" As A CTM

Chocoladefabriken Lindt & Sprüngli AG v OHIM, Case C-98/11 P, 24 May 2012

Where an unusual mark, in this case the three dimensional image of the well known Lindt Gold Bunny chocolate product, is not inherently distinctive in every member state of the EU, it cannot be protected as a CTM unless there is evidence that it has acquired distinctiveness through use in the remaining part of the EU. Thus distinctiveness must be established throughout the EU whether inherently from the outset, or through evidence of distinctiveness acquired through use, or a combination of the two.

As a Community Trade Mark is a unitary right covering the whole of the EU as a single market, a trade mark which lacks distinctive character in part of the EU will be refused registration as a CTM. However, it is possible to obtain registration under Article 7(3) of the Community Trade Mark Regulation (CTM Regulation) if it can be established through evidence that the mark has acquired