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

(Case T-171/07)

Language in which the application was lodged: English

Parties

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)

Form of order sought

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 - application No 3 291 457

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

Mark or sign cited: The Community word mark "MULTIVANTAGE" for goods and services in Classes 9, 38 and 42 - application 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.

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.

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