The relevant registration covers this specific shape of a bottle, with glass which is “frosted” – in Spanish “cristal esmerilado”. This specific characteristic is expressly mentioned in the trade mark description.

On the basis of this Spanish registration (amongst others), Freixenet sued a competitor that also sold cava in “frosted glass” bottles.

Although it was out of the question that the the “frosted glass” feature of the claimant's trade mark was reproduced in the alleged infringing bottles, the respondent was held not to be liable for trade mark infringement as the lower Court found that this specific feature was ancillary. The conclusion the lower Court reached is that the imitation of the “frosted glass” feature in the respondent’s cava bottle was not enough to cause confusion in the Spanish market with Freixenet’s cava bottles.

Departing from the results of a demoscopic survey that proved that the 70% of the Spanish consumers associated the "frosted glass" cava bottle with the products sold by Freixenet (trade mark owner), the Spanish Supreme Court found that the “frosted glass” feature was famously associated with Freixenet. This lead to the conclusion that this was the essential element of the Spanish registration, and that the respondent was liable on the grounds of trade mark infringement.