Case T-190/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle) (Community trade mark — Shape of a frosted white 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)
Date: 2006-11-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), sparkling wine, trade-mark law

C 281/32

EN

Official Journal of the European Union

18.11.2006

Judgment of the Court of First Instance of 4 October 2006
— Freixenet v OHIM (Shape of a frosted white bottle)

Judgment of the Court of First Instance of 13 September
2006 — MIP METRO v OHIM Tesco Stores (METRO)

(Case T-190/04) (1)

(Case T-191/04) (1)

(Community trade mark — Shape of a frosted white bottle
— Absolute ground of refusal — Article 7(1)(b) of Regu-
lation (EC) No 40/94 — Lack of distinctive character —
Infringement of the rights of the defence — Article 73 of
Regulation No 40/94)

(2006/C 281/54)

Language of the case: French

Parties

Applicant: Freixenet, SA (Sant Sadurní d'Anoia, Spain) (repre-
sented by: F. de Visscher, E. Cornu, É. De Gryse and D. Moreau,
lawyers)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)
I. de Medrano
Caballero, Agent)

(represented by:

Re:

Action for annulment of the decision of the Fourth Board of
Appeal of OHIM of 11 February 2004 (Case R 97/2001-4)
concerning registration of a mark in the form of a frosted
white bottle as a Community trade mark

(Community trade mark — Opposition proceedings — Appli-
cation for a figurative mark consisting of the word mark
METRO — Earlier national word mark METRO — Expiry
of protection of earlier national trade mark)

(2006/C 281/55)

Language of the case: English

Parties

Applicant: MIP METRO Group Intellectual Property GmbH &
Co. KG (Düsseldorf, Germany)
(represented by: R. Kaase,
avocat)

Defendant: Office for Harmonisation in the Internal Market
(represented by: A. Folliard-
(Trade Marks and Designs)
Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM,
Instance: Tesco Stores Ltd
intervening before the Court of First
(Cheshunt, United Kingdom)
(represented by: S. Malynicz,
Barrister)

Re:

Action brought against
the First Board of
Appeal of OHIM of 23 March 2004 (Case R 486/2003-1),
relating to opposition proceedings between MIP Metro Group
Intellectual Property GmbH & Co. KG and Tesco Stores Ltd.

the decision of

Operative part of the judgment

Operative part of the judgment

The Court:

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office
(Trade Marks and

for Harmonisation in the Internal Market
Designs) (OHIM) of 11 February 2004 (Case R 97/2001-4);

1. Declares that the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 23 March 2004 (Case R 486/2003-1)
is
annulled;

2. Dismisses the remainder of the action;

2. Orders OHIM to bear its own costs and to pay those incurred by

the applicant;

3. Orders OHIM to bear its own costs and to pay those of the appli-

cant.

3. Orders the intervener to bear its own costs.

(1) OJ C 201, 7.8.2004.

(1) OJ C 201, 7.8.2004.