Community trade mark - Application for a three-dimensional Community trade mark - Shape of a chocolate mouse - 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) - Rights of the defence.

Judgment of the General Court (First Chamber) of 17 December 2010 – Storck v OHIM (Shape of a chocolate mouse) (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: August Storck KG 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.