Sign consisting of the shape of a rabbit with red ribbon is devoid of any distinctive character

TRADE MARK LAW

Ruling on proper grounds that sign consisting of shape of a rabbit with red ribbon is devoid of any distinctive character.

"41. It must be remembered that, under Article 7(1)(b) of Regulation No 40/94, trade marks which are devoid of any distinctive character are not to be registered. It is settled case-law that the distinctive character of a trade mark, within the meaning of that provision, must be assessed, firstly, by reference to the goods or services in respect of which registration has been sought and, secondly, by reference to the perception of them by the relevant public (see, inter alia, Henkel v OHIM, paragraph 35; Case C-25/05 P Storck v OHIM [2006] ECR I-5719, paragraph 25, and Case C-238/06 P Develey v OHIM [2007] ECR I-9375, paragraph 79).

42. Only a mark which departs significantly from the norm or customs of the industry and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 (Deutsche SiSi-Werke v OHIM, paragraph 31)."

Registrations already made in Member States may be taken into account, but OHIM under no obligation to follow national assessments in relation to Community trade mark.

"50. Regarding the appellant’s argument that the existence of trade mark registrations in 15 Member States supports the distinctive character of the mark for which registration is sought for the purpose of Regulation No 40/94, it is necessary to note that the General Court did not err in law by finding, in accordance with settled case-law of the Court, at paragraph 55 of the judgment under appeal, that registrations already made in Member States are only one factor which may be taken into account in connection with the registration of a Community trade mark, the mark for which registration is sought having to be assessed on the basis of the relevant European Union rules, and that it follows that OHIM is under no obligation to follow the assessment of the competent national authorities or to register the mark at issue as a Community trade mark on the basis of those considerations (see, to that effect, Develey v OHIM, paragraphs 72 and 73)."

IPPT20120524, CJEU, Lindt v OHIM

C-98/11 P - ECLI:EU:C:2012:307