CELEX: 62004TJ0188
Community trade mark
Shape of a frosted matt black bottle
Absolute ground of refusal
Article 7(1)(b) of Regulation (EC) No 40/94
Lack of distinctive character
Infringement of the rights of the defence
Article 73 of Regulation No 40/94

ACTION for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 104/2001-4) concerning
registration of a mark in the form of a frosted matt black bottle as a Community trade mark.
Information relating to the case
Applicant for the Community trade mark:
Freixenet, SA
Community trade mark sought:
Three-dimensional mark in the shape of a frosted matt black bottle for goods in Class 33 – Application No 32540
Decision of the examiner:
Refusal of registration
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM) of 11 February 2004 (Case R 104/2001-4);

Dismisses the remainder of the action;

Orders OHIM to bear its own costs and to pay those of the applicant.