Judgment of the General Court (Sixth Chamber) of 12 July 2012

1. Community trade markDefinition and acquisition of the Community trade markAbsolute grounds for refusalMarks devoid of any distinctive characterConcept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 12)

2. Community trade markDefinition and acquisition of the Community trade markAbsolute grounds for refusalMarks devoid of any distinctive characterAssessment of distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 13)

3. Community trade markDefinition and acquisition of the Community trade markAbsolute grounds for refusalMarks devoid of any distinctive characterThree-dimensional mark consisting in the shape of a bottle (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14, 32, 33)

4. Community trade markDefinition and acquisition of the Community trade markAbsolute grounds for refusalMarks devoid of any distinctive characterThree-dimensional marks consisting in the shape of the productDistinctive characterCriteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15-17)

5. Community trade markDefinition and acquisition of the Community trade markPrior registration of the trade mark in certain Member StatesEffect (see para. 35)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 March 2011 (Case R 2238/2010-2) concerning an application for registration of a three-dimensional sign consisting in the shape of a bottle as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Unión de Cervecerías Peruanas Backus y Johnston SAA to pay the costs.