Case T-306/06: Action brought on 13 November 2006 — Air Products and Chemicals v OHIM — Messer Group (INOMIX)
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), gas, metalworking, steel, trade-mark law

C 326/62

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

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

Applicant for the Community trade mark: Messer Group GmbH

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

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

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

Form of order sought

Mark or sign cited: The Community word mark ‘FERROMAXX’
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 1270/2005-2) dismissed; appeal brought by Messer Group
GmbH (R 1408/2005-2) 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 12 September 2006 of the Second
Board of Appeal of OHIM in joined Cases R 1226/2005-2
and R 1398/2005-2;

— reject the contested application for registration of the trade

mark ‘INOMIX’ CTM 3 190 031 in its entirety;

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

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

— overestimated the knowledge and awareness of non profes-

Pleas in law and main arguments

sional consumers of welding gas;

— erroneously assumed that the trade mark ‘FERROMAXX’ was

Applicant for the Community trade mark: Messer Group GmbH

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.

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

(Case T-306/06)

(2006/C 326/133)

Community trade mark concerned: The word mark ‘INOMIX’ for
goods in classes 1 and 4 — application No 3 190 031

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

Mark or sign cited: The Community word mark ‘INOMAXX’ 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 1226/2005-2) dismissed; appeal brought by Messer Group
GmbH (R 1398/2005-2) upheld

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

— overestimated the knowledge and awareness of non profes-

sional consumers of welding gas;

— erroneously assumed that the trade mark ‘INOMAXX’ was

Language in which the application was lodged: English

inherently weak;

Parties

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

(Allentown, USA)

— 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.