Source: EURLEX
Language: en
Format: md

**Judgment of the Court of First Instance (Third Chamber) of 4 October 2006 – Freixenet v OHIM (Shape of a frosted white bottle)**

**(Case T-190/04)**

Community trade mark – Shape of a frosted white bottle – Absolute ground for 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

1.                     *Community trade mark – Appeals procedure (Council Regulation No 40/94, Art. 63(3) and (6)) (see paras 15-18, 44-47)*

2.                     *Community trade mark – Decisions of the Office – Compliance with rights of the defence (Council Regulation No 40/94, Art.
73) (see paras 28-30, 41-42)*

**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. |

**Information relating to the case**

|  |  |
| --- | --- |
| Applicant for the Community trade mark: | Freixenet, SA |
| Community trade mark sought: | Three-dimensional mark in the shape of a frosted white bottle for goods in Class 33 – Application No 32532 |
| Decision of the examiner: | Refusal of registration |
| Decision of the Board of Appeal: | Appeal dismissed |

**Operative part**

The Court:

|  |  |  |
| --- | --- | --- |
|  |  | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 97/2001-4); |

|  |  |  |
| --- | --- | --- |
|  |  | Dismisses the remainder of the action; |

|  |  |  |
| --- | --- | --- |
|  |  | Orders OHIM to bear its own costs and to pay those of the applicant. |

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