# C_2006326EN.01006102.xml

| 30.12.2006 | EN | Official Journal of the European Union | C 326/61 |
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30.12.2006

EN

Official Journal of the European Union

C 326/61

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Action brought on 13 November 2006 — Air Products and Chemicals v OHIM — Messer Group (FERROMIX)

(Case T-305/06)

(2006/C 326/132)

Language in which the application was lodged: English

Parties

Applicant: Air Products and Chemicals Inc. (Allentown, USA) (represented by: S. Heurung, lawyer)

Applicant:

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Defendant

Other party to the proceedings before the Board of Appeal: Messer Group GmbH (Sulzbach, Germany)

Other party to the proceedings before the Board of Appeal:

Form of order sought

| — | Annul the decision of 12 September 2006 of the Second Board of Appeal of OHIM in joined Cases R 1270/2005-2 and R 1408/2005-2; |
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Annul the decision of 12 September 2006 of the Second Board of Appeal of OHIM in joined Cases R 1270/2005-2 and R 1408/2005-2;

| — | reject the contested application for registration of the trade mark ‘FERROMIX’ CTM 3 190 063 in its entirety; |
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reject the contested application for registration of the trade mark ‘FERROMIX’ CTM 3 190 063 in its entirety;

| — | send the decision of the Court of First Instance to OHIM; |
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send the decision of the Court of First Instance to OHIM;

| — | order Messer Group to pay all the costs and expenses. |
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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

Applicant for the Community trade mark:

Community trade mark concerned: The word mark ‘FERROMIX’ for goods in classes 1 and 4 — application No 3 190 063

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Proprietor of the mark or sign cited in the opposition proceedings:

Mark or sign cited: The Community word mark ‘FERROMAXX’ for goods in class 1

Mark or sign cited:

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 Opposition Division:

Decision of the Board of Appeal: Appeal brought by the applicant (R 1270/2005-2) dismissed; appeal brought by Messer Group GmbH (R 1408/2005-2) upheld

Decision of the Board of Appeal:

Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal among others:

Pleas in law:

| — | overestimated the knowledge and awareness of non professional consumers of welding gas; |
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overestimated the knowledge and awareness of non professional consumers of welding gas;

| — | erroneously assumed that the trade mark ‘FERROMAXX’ was inherently weak; |
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erroneously assumed that the trade mark ‘FERROMAXX’ was inherently weak;

| — | did not pay sufficient attention to the fact that the goods in question are partially identical, partially highly similar; and |
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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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failed to consider the overall impression of the marks as a whole.

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