Case T-308/06: Action brought on 13 November 2006 — Buffalo Milke Automotive Polishing Products v OHIM — Werner & Mertz (Buffalo Milke Automotive Polishing Products)
Date: 2006-11-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), motor car, polishing and scouring preparations, trade-mark law

30.12.2006

EN

Official Journal of the European Union

C 326/63

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

— overestimated the knowledge and awareness of non profes-

sional consumers of welding gas;

(Case T-307/06)

(2006/C 326/134)

Language in which the application was lodged: English

— erroneously assumed that

the trade mark ‘ALUMIX’ 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.

Parties

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

(Allentown, USA)

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)

Action brought on 13 November 2006 — Buffalo Milke
Automotive Polishing Products v OHIM — Werner &
Mertz (Buffalo Milke Automotive Polishing Products)

(Case T-308/06)

(2006/C 326/135)

Form of order sought

Language in which the application was lodged: English

— 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;

Parties

— reject the contested application for registration of the trade

mark ‘ALUMIX’ CTM 3 190 022 in its entirety;

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

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

Applicant: Buffalo Milke Automotive Polishing Products,
Inc.
(Pleasanton, USA) (represented by: F. de Visscher, E. Cornu and
D. Moreau, lawyers)

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

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal: Werner &
Mertz GmbH (Mainz, Germany)

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

Form of order sought

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

Mark or sign cited: The Community word mark ‘ALUMIX’ 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:

— Annul the decision of the Second Board of Appeal of the
the Internal Market of 8

Office for Harmonisation of
September 2006 in case R 1094/2005-2;

— order the Office to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘BUFFALO
MILKE Automotive Polishing Products’ for goods and services in
classes 3, 18 and 25 — application No 2 099 018

C 326/64

EN

Official Journal of the European Union

30.12.2006

Proprietor of the mark or sign cited in the opposition proceedings:
Werner & Mertz GmbH

Community trade mark concerned: Word mark BUD for goods in
Class 32 — application No 24 711

Mark or sign cited: The national figurative mark ‘BÚFALO’ for
goods in class 3

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

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision

Pleas in law: Infringement of Article 43 of Council Regulation
No 40/94 and Rule 22 of Commission Regulation No 2868/95
as the Board of Appeal should not have taken into consideration
the proof of use filed for the first time before it and outside the
time limit set forth by the Opposition Division.

Action brought on 14 November 2006 — Budějovický
Budvar v OHIM — Anheuser-Busch (BUD)

(Case T-309/06)

(2006/C 326/136)

Language in which the application was lodged: French

Parties

Mark or sign cited in opposition: Right to the protected appellation
of origin BUD for beer

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:
Infringement of Article 62(1) of Regulation No
40/94 (1) and Article 20 of the implementing regulation No
2868/95 (2) in that the Board of Appeal does not have jurisdic-
tion to rule on the validity of the appellation of origin relied on
by the applicant in its opposition. The applicant also submits
that the sign BUD constitutes an appellation of origin protected
in France and Austria. It also relies on incorrect application of
Article 8(4) of Regulation No 40/94 in that the appellation of
origin BUD in its view does indeed constitute a sign used in the
course of trade.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Applicant: Budějovický Budvar, národní podnik (České Budějo-
vice, Czech Republic) (represented by F. Fajgenbaum, lawyer)

Action brought on 17 November 2006 — Republic of
Hungary v Commission of the European Communities

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

Other party to the proceedings before the Board of Appeal of OHIM:
Anheuser-Busch, Inc.

(Case T-310/06)

(2006/C 326/137)

Language of the case: Hungarian

Form of order sought

— set aside the contested decision R 305/2005-2 of 1
September 2006 of the Second Board of Appeal of OHIM;

Parties

— reject application No 24 711 for registration of the word

mark BUD for goods in Class 32;

— transmit the decision of the Court of First Instance of the

European Communities to OHIM;

— order Anheuser-Busch to pay all the costs.

Applicant(s): Republic of Hungary (represented by: J. Fazekas)

Defendant(s): Commission of the European Communities

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: Anheuser-Busch, Inc.

— Assignment of the case to the Grand Chamber of the Court
of First Instance pursuant to Articles 14(1) and 51(1) of its
Rules of Procedure.