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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 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. # Case T-188/04.
ECLI:EU:T:2006:290
62004TJ0188
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(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
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:
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);
Dismisses the remainder of the action;
Orders OHIM to bear its own costs and to pay those of the applicant.