Case T-307/06: Action brought on 13 November 2006 — Air Products and Chemicals v OHIM — Messer Group (ALUMIX)
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), aluminium, gas, metalworking, 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