Community trade mark - Shape of a frosted matt black bottle - Absolute ground of refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character - Infringement of the rights of the defence - Article 73 of Regulation No 40/94.

Judgment of the Court of First Instance (Third Chamber) of 4 October 2006 – Freixenet v OHIM (Shape of a frosted matt black bottle) (Case T-188/04) Community trade mark – Shape of a frosted matt black bottle – Absolute ground of refusal – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character – Infringement of the rights of the defence – Article 73 of Regulation No 40/94 1.                     Community trade mark – Appeals procedure (Council Regulation No 40/94, Art. 63(3) and (6)) (see paras 15-18, 44-47) 2.                     Community trade mark – Decisions of the Office – Compliance with rights of the defence (Council Regulation No 40/94, Art. 73) (see paras 28-30, 41-42) Re: ACTION for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 104/2001-4) concerning registration of a mark in the form of a frosted matt black 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 mark in the shape of a frosted matt black bottle for goods in Class 33 – Application No 32540 Decision of the examiner: Refusal of registration Decision of the Board of Appeal: Appeal dismissed Operative part The Court: Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 104/2001-4); Dismisses the remainder of the action; Orders OHIM to bear its own costs and to pay those of the applicant.