Source: EURLEX
Language: en
Format: md

**Judgment of the General Court (Third Chamber) of 27 April 2010 – Freixenet v OHIM (Shape of a frosted black matt bottle)**

**(Case T-110/08)**

Community trade mark – Application for a Community trade mark representing a frosted black matt bottle – Absolute ground for refusal – Lack of distinctive character – No distinctive character acquired through use – Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) – Duty to state reasons – Rights of the defence – Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Exception – Acquisition of distinctive character through use (Council Regulation No 40/94, Art. 7(1)(b), and (3)) (see paras 68, 78,
84, 102, 119-120)

**Re:**

|  |  |
| --- | --- |
|  | ACTION brought against the decision of the First Board of Appeal of OHIM of 20 November 2007 (Case R 104/2001-1) concerning an application for registration of a sign representing a frosted black matt 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 trade mark in the shape of a frosted matt black bottle for goods in Class 33 – Application No 32540 |
| Decision of the Examiner: | Registration refused |
| Decision of the Board of Appeal: | Appeal dismissed |

**Operative part**

The Court:

|  |  |  |
| --- | --- | --- |
| 1. |  | Dismisses the action; |

|  |  |  |
| --- | --- | --- |
| 2. |  | Orders Freixenet, SA to pay the costs. |

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