Judgment of the Court of First Instance (Third Chamber) of 4 October 2006 – Freixenet v OHIM (Shape of a frosted matt black bottle)
(Case T-188/04)
Community trade mark – Shape of a frosted matt black 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
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 104/2001-4) concerning registration of a mark in the form of a frosted matt black 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 matt black bottle for goods in Class 33 – Application No 32540 |
Decision of the examiner: | Refusal of registration |
Decision of the Board of Appeal: | Appeal dismissed |
Operative part
The Court:
1. |
| 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 104/2001-4); |
2. |
| Dismisses the remainder of the action; |
3. |
| Orders OHIM to bear its own costs and to pay those of the applicant. |