Action brought on 28 February 2008 - Freixenet SA v OHIM (Shape of a frosted white bottle)

(Case T-109/08)

Language in which the application was lodged: French

Parties

Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 532 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007;

In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted white bottle for goods in class 33 (application No 32 532)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-190/04 Freixenet v OHIM (shape of a frosted white bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

The Board of Appeal failed to specify the documents on which it bases its decision ;

The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; and

In any case, the trade mark in question has acquired a distinctive character in the Community by usage.

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