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

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Mars, Inc. to pay the costs.