Case T-109/08: Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)
Date: 2008-02-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), packaging product, sparkling wine, trade-mark law

9.5.2008

EN

Official Journal of the European Union

C 116/25

Action brought on 28 February 2008 — Freixenet SA v
OHIM (Shape of a frosted white bottle)

Action brought on 28 February 2008 — Freixenet v OHIM
(Shape of a frosted matt black bottle)

(Case T-109/08)

(2008/C 116/45)

(Case T-110/08)

(2008/C 116/46)

Language in which the application was lodged: French

Language in which the application was lodged: French

Parties

Parties

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

(repre-

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

(repre-

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

Form of order sought

for Harmonisation in the

— Annul the decision of the First Board of Appeal of the
Office
Internal Market of
30 October 2007 and, doing what that Board of Appeal
should have done, decide that the application for Com-
munity trade mark No 32 532 satisfies the conditions for
publication in accordance with Article 40 of the Regulation
on the Community trade mark;

— In the alternative, annul the decision of the First Board of
the Office for Harmonisation in the Internal

Appeal of
Market of 30 October 2007;

— In any case, order the Office for Harmonisation in the

Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in
the shape of a frosted white bottle for goods in class 33 (appli-
cation No 32 532)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal; decision
taken following the judgment of the Court of First Instance in
Case T-190/04 Freixenet v OHIM (shape of a frosted white
bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73
of Regulation No 40/94 and of the obligation to state reasons,
to the extent that:

— The Board of Appeal failed to hear the applicant's observa-
tions with regard to the Board's different factual assessment;

— The Board of Appeal failed to specify the documents on

which it bases its decision;

— The type of appearance of the bottle in question is original
and differs from the usual types existing on 1 April 1996;
and

for Harmonisation in the

— Annul the decision of the First Board of Appeal of the
Office
Internal Market of
20 November 2007 and, doing what that Board of Appeal
should have done, decide that the application for Com-
munity trade mark No 32 540 satisfies the conditions for
publication in accordance with Article 40 of the Regulation
on the Community trade mark;

— In the alternative, annul the decision of the First Board of
the Office for Harmonisation in the Internal

Appeal of
Market of 20 November 2007;

— In any case, order the Office for Harmonisation in the

Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in
the shape of a frosted matt black bottle for goods in class 33
(application No 32 540)

Decision of the Examiner: Reject the application

Decision of the Board of Appeal: Dismissal of the appeal; decision
taken following the judgment of the Court of First Instance in
Case T-188/04 Freixenet v OHIM (shape of a frosted matt black
bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73
of Regulation No 40/94 and of the obligation to state reasons,
to the extent that:

— The Board of Appeal failed to hear the applicant's observa-
tions with regard to the Board's different factual assessment;

— The Board of Appeal failed to specify the documents on

which it bases its decision;

— The type of appearance of the bottle in question is original
and differs from the usual types existing on 1 April 1996;

— In any case, the trade mark in question has acquired a

— In any case, the trade mark in question has acquired a

distinctive character in the Community by usage.

distinctive character in the Community by usage.