Judgment of the Court of First Instance (Second Chamber) of 5 May 2009 – ars Parfum Creation & Consulting v OHIM (Shape of a spray bottle)

(Case T-104/08)

(Community trade mark – Application for a three-dimensional Community trade mark – Shape of a spray bottle – Absolute ground for refusal – Lack of distinctive character – Obligation to state reasons – Articles 7(1)(b), 73 and 74(1) of Regulation (EC) No 40/94 )

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 40, 42, 46)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 8 November 2007 (Case R 1656/2006-1), relating to the registration as a Community trade mark of a three-dimensional sign consisting of the shape of a spray bottle.

Information relating to the case

Applicant for the Community trade mark:	ars Parfum Creation & Consulting GmbH
Community trade mark sought:	Three-dimensional trade mark in the shape of a perfume bottle for goods in Class 3 – Application No 4995361
Decision of the examiner:	Registration refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1.         Dismisses the action;

2.         Orders ars Parfum Creation & Consulting GmbH to pay the costs.