Judgment — ECLI:EU:T:2009:253
Date: 2009-07-08
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Rights of the defence;Acquisition of distinctive character through use;Three-dimensional marks
Procedure: Action for annulment - unfounded

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 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. 1. Dismisses the action; 2. 2. Orders Mars, Inc. to pay the costs.