CELEX: 62008TJ0028
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)

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
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
Proprietor of the Community trade mark:
Mars, Inc.
Party requesting the declaration of invalidity of the Community trade mark:
Ludwig Schokolade GmbH & Co. KG
Decision of the Cancellation Division:
Rejection of the request for a declaration of invalidity
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.