CELEX: 62008TJ0028
Language: en
Date: 2009-07-08
Title: Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009. # Mars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # 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). # Case T-28/08.

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.