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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.
ECLI:EU:T:2009:253
62008TJ0028
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(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)
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:
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.