Judgment of the General Court (Seventh Chamber) of 9 September 2010 – adp Gauselmann v OHIM – Maclean (Archer Maclean’s Mercury)

(Case T-106/09)

Community trade mark – Opposition proceedings – Application for the Community figurative mark Archer Maclean’s Mercury – Earlier national word mark Merkur – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 20, 39-40)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 12 January 2009 (Case R 1266/2007-1), relating to opposition proceedings between adp Gauselmann GmbH and Archer Maclean.

Information relating to the case

Applicant for the Community trade mark:	Archer Maclean
Community trade mark sought:	Figurative mark Archer Maclean’s Mercury, for goods in Classes 9, 16 and 28 – Application No 4290227
Proprietor of the mark or sign cited in the opposition proceedings:	adp Gauselmann GmbH
Mark or sign cited in opposition:	German trade mark registration of the word mark Merkur for goods and services in Classes 6, 9, 28, 35, 37, 41 and 42
Decision of the Opposition Division:	Opposition dismissed
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders adp Gauselmann GmbH to pay the costs.