(Case T-412/08)

Community trade mark – Opposition proceedings – Application for the Community word mark TRUBION – Earlier Community figurative mark TriBion Harmonis – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 28, 56-58)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 July 2008 (Case R 1605/2007-2), relating to opposition proceedings between Trubion Pharmaceuticals, Inc. and Merck KGaA.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Word mark TRUBION for goods and services in Classes 5 and 42

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

Merck KGaA

Mark or sign cited in opposition:

Community trade mark registration No 72884 of the word mark BION registered for various goods; Community trade mark registration No 3282936 of the figurative mark TriBion Harmonis registered for various goods

Decision of the Opposition Division:

Opposition upheld in respect of the goods in Class 5 and dismissed in respect of the remaining services in Class 42

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Trubion Pharmaceuticals, Inc. to pay the costs.