CELEX: 62004TJ0190
Language: en
Date: 2006-10-04 00:00:00
Title: Judgment of the Court of First Instance (Third Chamber) of 4 October 2006. # Freixenet SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # 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. # Case T-190/04.

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.