JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
23 November 2004(1)

(Community trade mark – Three-dimensional mark – Shape of a cheese box – Absolute ground for refusal – Article 7(1)(b) of Regulation (EC) No 40/94 – Distinctive character)

In Case T-360/03,

Frischpack GmbH & Co. KG, established in Mailling bei Schönau (Germany), represented by P. Bornemann, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by U. Pfleghar and G. Schneider, acting as Agents,

defendant,

ACTION brought against Decision R 236/2003-2 of the Second Board of Appeal of OHIM of 8 September 2003 concerning the registration of a three-dimensional mark (cheese box),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: P. Lindh, President, R. García-Valdecasas and D. Šváby, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the application lodged at the Registry of the Court of First Instance on 30 October 2003,having regard to the response lodged at the Registry of the Court of First Instance on 21 January 2004,further to the hearing on 8 July 2004,

gives the following

Judgment

–

alter the contested decision and annul it in part in so far as it refers to ‘cheese slices in large packs, not intended for the final consumer’;

–

order OHIM to pay the costs.

–

dismiss the application as inadmissible;

–

in the alternative, dismiss the application as unfounded;

–

order the applicant to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)