Action brought on 13 November 2006 - Air Products and Chemicals v OHIM - Messer Group (ALUMIX)
(Case T-307/06)
Language in which the application was lodged: English
Parties
Applicant: Air Products and Chemicals Inc. (Allentown, USA) (represented by: S. Heurung, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Messer Group GmbH (Sulzbach, Germany)
Form of order sought
- Annul the decision of 12 September 2006 of the Second Board of Appeal of OHIM in joined Cases R 1225/2005-2 and R 1397/2005-2;
reject the contested application for registration of the trade mark 'ALUMIX' CTM 3190022 in its entirety;
send the decision of the Court of First Instance to OHIM;
order Messer Group to pay all the costs and expenses.
Pleas in law and main arguments
Applicant for the Community trade mark: Messer Group GmbH
Community trade mark concerned: The word mark 'ALUMIX' for goods in classes 1 and 4 - application No 3 190 022
Proprietor of the mark or sign cited in the opposition proceedings: The applicant
Mark or sign cited: The Community word mark 'ALUMAXX' for goods in class 1
Decision of the Opposition Division: Opposition upheld in respect of all goods in class 1; opposition rejected in respect of all goods in class 4
Decision of the Board of Appeal: Appeal brought by the applicant (R 1225/2005-2) dismissed; appeal brought by Messer Group GmbH (R 1397/2005-2) upheld
Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal among others:
overestimated the knowledge and awareness of non professional consumers of welding gas;
erroneously assumed that the trade mark 'ALUMAXX' was inherently weak;
did not pay sufficient attention to the fact that the goods in question are partially identical, partially highly similar; and
failed to consider the overall impression of the marks as a whole.
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