# C_2004201EN.01002001.xml

| 7.8.2004 | EN | Official Journal of the European Union | C 201/20 |
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7.8.2004

EN

Official Journal of the European Union

C 201/20

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Action brought on 24 May 2004 by Société Freixenet S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-190/04)

(2004/C 201/42)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 24 May 2004 by Société Freixenet S.A., established in Sant Sadurní d'Anoia (Spain), represented by F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 11 February 2004 (Case R 97/2001-4) and find that the application for Community trade mark No 32532 is to be published in accordance with Article 40 of Regulation No 40/94; |
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annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 11 February 2004 (Case R 97/2001-4) and find that the application for Community trade mark No 32532 is to be published in accordance with Article 40 of Regulation No 40/94;

| — | in the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 11 February 2004 (Case R 97/2001-4); |
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in the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 11 February 2004 (Case R 97/2001-4);

| — | order the Office for Harmonisation in the Internal Market to pay the costs. |
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order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
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| Community trade mark sought: | Three-dimensional mark in the form of a white polished bottle (application No 32532) |
| Goods or services: | Goods in Class 33 (sparkling wines) |
| Decision of the Examiner: | Rejection of the application |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 73 of Regulation No 40/94, in so far as the decision of the Board of Appeal is based on a certain number of facts in respect of which the applicant was able to submit observations, and Article 7(1)(b) and (3) of that regulation, inasmuch as the trade mark in question is intrinsically distinctive |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Three-dimensional mark in the form of a white polished bottle (application No 32532)

Goods or services:

Goods in Class 33 (sparkling wines)

Decision of the Examiner:

Rejection of the application

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Infringement of Article 73 of Regulation No 40/94, in so far as the decision of the Board of Appeal is based on a certain number of facts in respect of which the applicant was able to submit observations, and Article 7(1)(b) and (3) of that regulation, inasmuch as the trade mark in question is intrinsically distinctive

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