(Photo WIPO)

The Swiss Federal Court ruled in last October that the round ball shape of the Lindt & Sprüngli AG’s LindorTM chocolates cannot be granted a three-dimensional (3D) mark. The court decided that marbles, balls and all other round spherical shapes belong to the public domain and thus cannot be granted protection as 3D marks.

Lindt showed the court that the public did identify the shape and packaging with the Lindor chocolate, but the court ruled that this did not remove the requirement that a mark be distinctive. Lindt was successful at proving distinctiveness in an earlier case in June. On that occasion, the court accepted to grant Lindt a 3D mark for their reindeer shaped chocolate.

Last year, Lindt won a suit in the German Federal Supreme Court against the chocolate manufacturer Hans Riegelein & Sohn GmbH & Co KG for marketing a chocolate similar to the Lindt Goldhase (Golden rabbit). The German Court’s ruling “that the shape and color must be considered when assessing the similarity of signs because elements of increased distinctiveness have relevant meaning for the overall impression” strengthened the position of 3D mark owners.

The registry of the Office for Harmonisation in the Internal Market shows that of the non-traditional marks – shape (3D), sound, color per se – 3D is the most used.