(Case T-13/09)

Community trade mark – Application for a three-dimensional Community trade mark – Shape of a chocolate mouse – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) – Rights of the defence

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Three-dimensional mark (Council Regulation No 40/94, Art. 7(1)(b)) (see para. 44)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 12 November 2008 (Case R 185/2006-4), concerning an application for registration as a Community trade mark of a three-dimensional sign consisting of the shape of a chocolate mouse.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Three-dimensional mark, which represents a mouse made out of chocolate, for goods in Class 30 – Application No 4490447

Decision of the examiner:

Registration refused

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders August Storck KG to pay the costs.