Judgment of the Court of First Instance (First Chamber) of 15 October 2008 – Air Products and Chemicals v OHIM – Messer Group (Ferromix, Inomix et Alumix)

(Joined Cases T-305/06 to T-307/06)

Community trade mark – Opposition proceedings – Applications for the Community word marks Ferromix, Inomix and Alumix – Earlier Community word marks FERROMAXX, INOMAXX and ALUMAXX – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94

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 21, 34, 59-63)

Re:

ACTIONS brought against three decisions of the Second Board of Appeal of OHIM of 12 September 2006 (Joined Cases R 1270/2005-2 and R 1408/2005-2; R 1226/2005-2 and R 1398/2005-2; R 1225/2005-2 and R 1397/2005-2), concerning opposition proceedings between Air Products and Chemicals, Inc. and Messer Group GmbH.

Information relating to the case

Applicant for the Community trade mark:

Messer Group GmbH

Community trade mark sought:

Word marks Ferromix, Inomix and Alumix for goods in Classes 1 and 4 – Application Nos 3190063, 3190031 and 3190022

Proprietor of the mark or signs cited in support of the opposition:

Air Products and Chemicals, Inc.

Marks or signs cited in support of the opposition:

Word marks FERROMAXX, INOMAXX and ALUMAXX for goods in Class 1

Decisions of the Opposition Division:

Oppositions upheld for all goods in Class 1 and dismissed for all goods in Class 4

Decisions of the Board of Appeal:

Appeals dismissed; actions by the applicant upheld

Operative part

The Court:

1.Annuls the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 September 2006 (Joined Cases R 1270/2005‑2 and R 1408/2005‑2; R 1226/2005‑2 and R 1398/2005‑2; R 1225/2005‑2 and R 1397/2005‑2);

2.Orders OHIM to bear its own costs and pay the costs of Air Products and Chemicals, Inc.;

3.Orders Messer Group GmbH to bear its own costs.