Action brought on 25 September 2008 — Trubion Pharmaceuticals v OHIM — Merck (TRUBION)

(Case T-412/08)

(2008/C 301/92)

Language in which the application was lodged: English

Parties

Applicant: Trubion Pharmaceuticals Inc. (Seattle, United States) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TRUBION’ for goods and services in classes 5 and 42

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Community trade mark registration No 72 884 of the word mark ‘BION’ registered for various goods; Community trade mark registration No 3 282 936 of the figurative mark ‘TriBion Harmonis’ registered for various goods

Decision of the Opposition Division: Upheld the opposition for the goods in class 5 and rejected it for the remaining services in class 42

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal (i) failed to asses the similarity of the trade marks by taking into account the overall impression of the earlier trade mark, and (ii) failed to take into account the interdependence of the relevant factors, in particular the low similarity of the goods when assessing the likelihood of confusion.