EN Official Journal of the European Union C 274/8

Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-109/08 Freixenet v OHIM

(Case C-344/10 P)

()

2010/C 274/12

Language of the case: French

Parties

Appellant: Freixenet, SA (represented by: F. de Visscher, E.Cornu and D. Moreau, lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— principally: set aside the judgment of the General Court of 27 April 2010 and annul the decision of the First Board of Appeal of OHIM of 30 October 2007, and decide that the application for Community trade mark No 32 532 satisfies the conditions for publication under Article 40 of Regulation No 40/94 (now Article 39 of Regulation No 207/2009);

— in the alternative, set aside the judgment of the General Court of 27 April 2010;

— in any event, order OHIM to pay the costs.

Pleas in law and main arguments

The appellant relies on the following three pleas in support of its appeal.

By its first plea, the appellant essentially alleges an infringement of the rights of the defence and the right to a fair hearing, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 73 (second sentence) and 38(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) (now Articles 75 (second sentence) and 37(3) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark). (2)

The first part of this plea alleges the breach of the audi alteram partem rule. According to the appellant, contrary to what the General Court found in the judgment under appeal, the First Board of Appeal of OHIM, in the decision that was brought before the General Court, undertook a new appraisal of the distinctive character of the appellant’s trade mark without allowing the appellant to make observations on that new appraisal. In this respect the reasons given by the General Court in support of the decision of the First Board of Appeal are incorrect and insufficient in the light of the principle of procedural fairness and respect for the rights of the defence. The judgment under appeal furthermore infringes the principle of the rights of the defence and procedural fairness, in deciding that the Office could communicate to the appellant a series of facts, indicating that it would base its refusal decision on those facts and then, after receiving the appellant’s written observations on those facts, decided, at least in part, to disregard them and to found its decision on an evaluation that was factually and conceptually different, without giving the appellant the opportunity to submit any observations.

In the second part, the appellant principally alleges a breach by the General Court of the requirement to state reasons, in that the judgment under appeal could not consider that a sufficient statement of reasons was given for the decision of the First Board of Appeal on the application of Article 7(1)(b), a decision which does not specify any of the documents upon which it seeks to rely, and could not consider that it was unnecessary to refer to items of evidence because the First Board of Appeal allegedly relied upon “deductions made from practical experience”. Furthermore, the uncertainty of the facts and the documents upon which the Office and the General Court relied affect both the rights of the defence and the requirement under Article 73 of Regulation No 40/94 to state reasons.

By its second plea, the appellant argues a breach by the General Court of Article 7(1)(b) of Regulation No 40/94. Although the appellant established, supported by documents, that the trade mark applied for consists of a combination of very characteristic elements which distinguish it significantly from the presentation of other products on the market, the General Court, in finding that the trade mark applied for did not have any distinctive character, only referred to the vague and general denials of the Office. The General Court was stricter in its appraisal of the distinctive character of the trade mark in question than in the case of other more traditional trade marks. The judgment under appeal thus infringed the obligation to carry out a specific assessment of the distinctive character of a trade mark. Moreover, in finding that the great majority of consumers do not perceive the original appearance of the trade mark as a useful factor in determining the origin of the sparkling wine in question, but prefer to refer to the label, the General Court ruled out the protection of the shape of a product’s packaging, even though that possibility is expressly envisaged by Article 4 of the Regulation.

By its third plea, the appellant alleges a breach by the General Court of Article 7(3) of Regulation No 40/94 in that the judgment under appeal imposes a requirement that the trade mark applied for has acquired a distinctive character through use in each of the Member States of the European Union. By refusing to acknowledge recognition of its distinctive character through its use by a significant proportion of the relevant class of persons, whilst at the same time acknowledging that the appellant’s trade mark had at least acquired such character in Spain, the General Court formulated a rule that was excessive and incorrect in the light of the Regulation.

(1) OJ 1994, L 11, p. 1.

(2) OJ 2009, L 78, p. 1.