Judgment — ECLI:EU:T:2009:507
Date: 2009-12-15
Language of the case: English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks applied for
Procedure: Action for annulment - unfounded

Action brought on 25 September 2008 - Trubion Pharmaceuticals v OHIM - Merck (TRUBION) (Case T-412/08) Language in which the application was lodged: English Parties Applicant: Trubion Pharmaceuticals Inc. (Seattle, United States) (represented by: C. Hertz-Eichenrode, lawyer) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany) Form of order sought Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 July 2008 in case R 1605/2007-2; and Order the defendant to pay the costs. Pleas in law and main arguments Applicant for the Community trade mark: The applicant Community trade mark concerned: The word mark "TRUBION" for goods and services in classes 5 and 42 Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal Mark or sign cited: Community trade mark registration No 72 884 of the word mark "BION" registered for various goods; Community trade mark registration No 3 282 936 of the figurative mark "TriBion Harmonis" registered for various goods Decision of the Opposition Division: Upheld the opposition for the goods in class 5 and rejected it for the remaining services in class 42 Decision of the Board of Appeal: Dismissal of the appeal Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal (i) failed to asses the similarity of the trade marks by taking into account the overall impression of the earlier trade mark, and (ii) failed to take into account the interdependence of the relevant factors, in particular the low similarity of the goods when assessing the likelihood of confusion. ____________