Source: EURLEX
Language: en
Format: md

**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. |  | Dismisses the action; |

|  |  |  |
| --- | --- | --- |
| 2. |  | Orders Mars, Inc. to pay the costs. |

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