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Document 62008TN0110
Case T-110/08: Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)
Case T-110/08: Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)
Case T-110/08: Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)
SL C 116, 9.5.2008, p. 25–25
(BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
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9.5.2008 |
EN |
Official Journal of the European Union |
C 116/25 |
Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)
(Case T-110/08)
(2008/C 116/46)
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
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 540 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark; |
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In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007; |
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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 matt black bottle for goods in class 33 (application No 32 540)
Decision of the Examiner: Reject 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-188/04 Freixenet v OHIM (shape of a frosted matt black 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:
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The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment; |
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The Board of Appeal failed to specify the documents on which it bases its decision; |
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The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; |
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In any case, the trade mark in question has acquired a distinctive character in the Community by usage. |