Case T-172/07: Action brought on 11 May 2007 — Atlantic Dawn and Others v Commission
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: European Commission, Ireland, action for annulment (EU), catch quota, exploitation of resources, sea fish, sustainable development

21.7.2007

EN

Official Journal of the European Union

C 170/29

Action brought on 14 May 2007 — Avaya v OHMI —
ZyXEL Communications (VANTAGE CNM)

(Case T-171/07)

(2007/C 170/57)

Language in which the application was lodged: English

Furthermore, the applicant claims on the basis of its second
plea, that the Board did not sufficiently consider the identity of
the goods and services of the opposing marks as well as the
high similarity of the marks themselves.

Parties

Action brought on 11 May 2007 — Atlantic Dawn and
Others v Commission

Applicant: Avaya Inc. (Basking Ridge, USA) (represented by: A.
Beschorner, B. Glaser, C. Thomas, lawyers)

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

Other party to the proceedings before the Board of Appeal: ZyXEL
Communications Corp. (Hsin-Chu, Taiwan)

(Case T-172/07)

(2007/C 170/58)

Language of the case: English

Form of order sought

Parties

— To annul

the decision of

the Second Board of Appeal
No R 156/2006-2 of 14 March 2007 regarding Community
trade mark application No 3 291 457 ‘VANTAGE CNM’;
and

— to order the defendant to pay the costs incurred in the
proceedings before the Court and to order the intervener to
pay the costs of the administrative proceedings before the
Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: ZyXEL Communications
Corp.

Community trade mark concerned: The Community figurative mark
‘VANTAGE’ for goods and services in Classes 9 and 42 — appli-
cation No 3 291 457

Ireland), Antarctic
Applicants: Atlantic Dawn Ltd (Killybegs,
Ireland), Atlantean Ltd (Killybegs,
Fishing Co. Ltd (Killybegs,
Ireland),
Ireland), Killybegs Fishing Enterprises Ltd (Killybegs,
Doyle Fishing Co. Ltd (Killybegs,
Ireland), Western Seaboard
Fishing Co. Ltd (Killybegs, Ireland), O'Shea Fishing Co. Ltd (Kill-
ybegs, Ireland), Aine Fishing Co. Ltd (Burtonport, Ireland), Bren-
delen Ltd (Lifford, Ireland), Cavankee Fishing Co. Ltd (Lifford,
Ireland), Ocean Trawlers Ltd (Killybegs, Ireland), Eileen Oglesby
(Burtonport, Ireland), Noel McGing (Killybegs, Ireland), Mullglen
Ltd (Balbriggan, Ireland), Bradan Fishing Co. Ltd (Sligo, Ireland),
Larry Murphy (Castletownbere, Ireland), Pauric Conneelly (Clare-
galway, Ireland), Thomas Flaherty (Kilronan, Ireland), Carmarose
Trawling Co. Ltd (Killybegs, Ireland), Colmcille Fishing Ltd (Kill-
ybegs, Ireland) (represented by: D. Barry, Solicitor, G. Hogan, SC,
N. Travers and T. O'Sullivan, Barristers)

Defendant: Commission of the European Communities

Proprietor of the mark or sign cited in the opposition proceedings:
Avaya Inc.

Form of order sought

Mark or sign cited: The Community word mark ‘MULTIVAN-
TAGE’ for goods and services in Classes 9, 38 and 42 — appli-
cation No 2 409 589

Decision of the Opposition Division: Rejected in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant advances two different pleas in
support of its application, namely, a breach of the principle of
equal treatment and case-law consistency on the one hand, as
well as the infringement of Article 8(1)(b) CTMR and the
general principles of trade mark law on the other hand.

On the basis of its first plea, the applicant submits that the
Board has departed from a previous decision rendered in a
parallel case dealing with a nearly identical issue without giving
any reasons for its sudden change in practice.

The applicants respectfully request the Court to:

— Annul Commission Regulation (EC) No 147/2007 of
15 February 2007 adapting certain fish quotas from 2007
to 2012 pursuant to Article 23(4) of Council Regulation
(EC) No 2371/2002 on the conservation and sustainable
exploitation of fisheries resources under the Common Fish-
eries Policy; in the alternative

— annul Article 1 of and Annex I to Commission Regulation
(EC) No 147/2007 of 15 February 2007 adapting certain
fish quotas from 2007 to 2012 pursuant to Article 23(4) of
Council Regulation (EC) No 2371/2002 on the conservation
and sustainable exploitation of fisheries resources under the
Common Fisheries Policy in so far and to the extent that the
said provisions reduce the quota allocated to Ireland for
mackerel (Scomber scombrus) for the years 2007 to 2012;

— order the Commission to pay the costs of these proceedings.

C 170/30

EN

Official Journal of the European Union

21.7.2007

Pleas in law and main arguments

Action brought on 18 May 2007 — Reno Schuhcentrum v
(Payless
OHIM — Payless

ShoeSource Worldwide
ShoeSource)

By means of their application, the applicants seek pursuant to
Article 230 EC, the annulment of Commission Regulation (EC)
No 147/2007 of 15 February 2007 adapting certain fish quotas
from 2007 to 2012 pursuant to Article 23(4) of Council Regu-
lation (EC) No 2371/2002 on the conservation and sustainable
exploitation of fisheries resources under the Common Fisheries
Policy (1).

(Case T-173/07)

(2007/C 170/59)

Language in which the application was lodged: English

The applicants submit that the contested regulation should be
invalidated on the basis of four grounds:

Parties

First, the applicants claim that the Commission lacked power to
adopt
the contested regulation reducing quotas in 2007 to
2012 on the basis of Article 23(4) of Council Regulation
2371/2002.

In the alternative, the applicants submit that should the Court
conclude that the Commission was empowered to effect quota
deductions for several years into the future on the basis of
historic over-fishing, the Commission has allegedly misused its
In fact, the applicants contend that the
power in this case.
Commission has not established that
the Member States
concerned by the contested regulation, namely, Ireland and the
United Kingdom, have exceeded the fishing opportunities allo-
cated to them, as required by Article 23(4) of the said regulation
for deduction of quotas. Moreover, the applicants maintain that
the Commission's sudden change of its established policy of
deducting quotas on a ‘previous year basis’ departing from the
wording and derived practice of Article 5 of Council Regulation
874/96, has breached the principle of legitimate expectations.

Furthermore, the applicants claim that the Commission failed to
provide reasons motivating its decision as required by Article
253 EC. On this basis, they submit that the contested regulation
is inadequately reasoned, in particular, since it represents a clear
and radical shift of policy with seriously adverse implications
for the applicants.

the principle of equal

Finally, the applicants submit that the Commission has acted in
taking
breach of
measures equivalent to those contained in the contested regu-
lation against any other fishing fleet,
in circumstances where
significant over-fishing of similarly threatened fish stock was
reported.

treatment by not

(1) OJ L 46, 16.2.2007, p. 10.

Applicant: Reno Schuhcentrum GmbH (Thaleischweiler-Fröschen,
Germany) (represented by: S. Schäffner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Payless
ShoeSource Worldwide, Inc. (Topeka, United States)

Form of order sought

The applicant claims the Court to:

— annul the decision of the First Board of Appeal of the OHIM
of 28 February 2007 (Case R 1209/2005-1), dismissing the
appeal relating to revocation proceedings No 731C 0000
186 163/1 (Community trade mark No 186 163 — Payless
ShoeSource);

— order the OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revoca-
tion: The figurative Community trade mark ‘Payless ShoeSource’
for goods and services in Classes 25, 35 and 42 — application
No 186 163

Proprietor of
Worldwide, Inc.

the Community trade mark: Payless ShoeSource

Party requesting the revocation of the Community trade mark: Reno
Schuhcentrum GmbH

Decision of
the Cancellation Division: Rejected the revocation
request partially, maintaining registration for goods and services
in Class 25 in force.

Decision of the Board of Appeal: Dismissed the appeal directed
against the remaining goods and services in Class 25.