Case T-171/07: Action brought on 14 May 2007 — Avaya v OHMI — ZyXEL Communications (VANTAGE CNM)
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), software, telecommunications, trade-mark law

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.