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Joined Cases C-344/10 P and C-345/10 P: Judgment of the Court (Third Chamber) of 20 October 2011 — Freixenet SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Applications for registration of Community trade marks representing a frosted white bottle and a frosted black matt bottle — Refusal to register — Lack of distinctive character)
ECLI:EU:UNKNOWN:62010CA0344
62010CA0344
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Official Journal of the European Union
C 362/9
(Joined Cases C-344/10 P and C-345/10 P) (<span class="super">1</span>)
(Appeal - Applications for registration of Community trade marks representing a frosted white bottle and a frosted black matt bottle - Refusal to register - Lack of distinctive character)
2011/C 362/13
Language of the case: French
Parties
Appellant: Freixenet SA (represented by: F. de Visscher, E. Cornu and D. Moreau, avocats)
Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)
Re:
Appeal against the judgment of the General Court (Third Chamber) of 27 April 2010 in Case T-109/08 Freixenet v OHIM, by which that court dismissed the appellant’s appeal against the decision of the First Board of Appeal of OHIM of 30 October 2007 (Case R 97/2001-1), concerning an application for registration of a sign representing a frosted white matt bottle as a Community trade mark — Infringement of Articles 7(1)(b), 73 and 38(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (now Articles 7(1)(b), 75 and 37(3) of Council Regulation (EC) No 207/2009 of 26 February on the Community trade mark (OJ 2009 L 78, p. 1)) — Infringement of the rights of the defence and the right to a fair hearing — Refusal to register a trade mark — Absence of distinctive character
Operative part of the judgment
The Court:
1.Sets aside the judgments of the General Court of the European Union of 27 April 2010 in Case T-109/08 Freixenet v OHIM (Frosted white bottle), and in Case T-110/08 Freixenet v OHIM (Frosted black matt bottle);
2.Annuls the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 October 2007 (case R 97/2001-1) and of 20 November 2007 (Case R 104/2001-1);
3.Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs both at first instance and in the appeals.
(<span class="super">1</span>) OJ C 274, 9.10.2010.