Judgment of the General Court (Third Chamber) of 27 April 2010 – Freixenet v OHIM (Shape of a frosted white bottle)

(Case T-109/08)

Community trade mark – Application for a Community trade mark representing a frosted white bottle – Absolute ground for refusal – Lack of distinctive character – No distinctive character acquired through use – Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) – Duty to state reasons – Rights of the defence – Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Exception – Acquisition of distinctive character through use (Council Regulation No 40/94, Art. 7(1)(b), and (3)) (see paras 69, 79, 85, 107, 123-124)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 30 November 2007 (Case R 97/2001-1) concerning an application for registration of a sign representing a frosted white 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 trade mark in the shape of a frosted white bottle for goods in Class 33 – Application No 32532
Decision of the Examiner:	Registration refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Freixenet, SA to pay the costs.