Chapter 5. National rights which constitute earlier rights in the sense of Article 8 CTMR

• Author: Office for Harmonization in the Internal Market
• Profession: European Commission
• Pages: 53-73

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This Chapter outlines which earlier national rights may be invoked against the registration or validity of a CTM application or CTM.

1. Article 8 CTMR sets out, in paragraphs (1) and (5), the relative grounds for refusal and states, in paragraphs (2) and (4), what kind of trade marks and other rights are relevant.

2. According Article 8 (2), the following national rights constitute relative grounds for refusal:

   - marks registered in a Member State; or trade marks registered at the Benelux Office for Intellectual Property,

   - applications for such marks, subject to their registration,

   - international registrations under the Madrid Agreement or the Madrid Protocol having effect in a Member State, including the Benelux,

   - trade marks registered under international arrangements which have effect in the Community

   In addition, the following constitute a relative ground for refusal, in accordance with and subject to the national law concerned: a non-registered trade mark, another sign used in the course of trade, provided that such mark or sign is of more than mere local significance, that it was acquired prior to the filing or, if any, priority date of the CTM, and that it confers on its proprietor the right to prohibit the use of a subsequent trade mark (Article 8 (4)). "Another sign" refers to exclusive rights of a similar character as trade marks and include trade names and company names (corporate names), other business designations like establishment or store names, titles of publications or similar works, as well as any other similar exclusive right falling within this category.

3. The national mark or other sign must be "earlier" than the CTM or CTM application against which it is invoked.

   The relevant date of the national mark or other sign is:

   - In the case of a national trade mark or trade mark application the filing date or, if priority has been validly claimed, priority date. However, applications for such marks are taken into account only subject to their registration;

   - In case of international registration under the Madrid Agreement or the Madrid Protocol, the date of international registration or subsequent territorial extension, in respect of that Member State, or the priority date of that registration as recorded by the International Bureau;

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   - In case of international registration designating the European Community, the date of international registration or subsequent designation of the European Community, or the priority date of that registration as recorded by the International Bureau or by the OHIM.

   In case of a non-registered mark or another sign used in the course of trade, the date of acquisition of that right according to the national legislation.

   The relevant date of the CTM or CTM application is the filing date or, if priority has been validly claimed, the priority date. The date of seniority is not relevant in this context.

4. The following table outlines the kinds of national marks and other rights which qualify as relative grounds for refusal in opposition and invalidation proceedings before the Office or a CTM Court. Applications for trade marks have not been expressly mentioned.

5. Pursuant to Article 52 (2) CTMR, the following rights not constituting marks or signs also qualify as a relative ground for invalidation: a right to a name, a right to a personal portrayal, a copyright or another industrial property right, subject to national law and in particular subject to the scope of protection given to these rights under the relevant national law. The following table does not refer to these rights as the scope of protection of these national rights under national law cannot be readily summarized and may in particular depend on the circumstances of the case.

   National rights which only apply to a particular locality (i.e. of mere local significance) do not constitute a ground for opposition or declaration of invalidity, but confer on their proprietor the right, pursuant to Article 107 CTMR, to oppose the use of the CTM in the territory where the local right is protected, insofar as the law of the Member State concerned so permits, and subject to certain limitations. National rights of this kind have not been included in the following table.

   Earlier rights which can preclude registration of a CTM comprise earlier marks well known in a Member State, in the sense in which the words "well-known" are used in Article 6bis of the Paris Convention (Article 8 (2)(c) CTMR). Such well-known marks are not mentioned in the list because the CTMR itself defines these earlier rights, and the national legislation on well-known marks is not relevant here.

   A second table has been annexed which lists national rights of the two candidate countries which would fall under Article 8 CTMR. The table is included for information purposes, since the earlier rights of these countries may not be invoked against the registration of a CTM only if these countries accede to the European Union.

   On 1 May 2004 ten new countries joined the EU and on 1 January 2007 another two. The Community Trade Marks registered or applied before the accession date were automatically extended to their territories. Earlier rights in the new Member States did not confer the right to oppose a CTM registration, or to request its invalidation, except where the date of the application for registration of the CTM was within the six month immediately preceding accession. It is not sufficient that the earlier rights exist at the date of the accession; they must actually pre-date the CTM application being challenged. The right to object is excluded if the earlier right is acquired in bad faith.

   The owners of earlier CTMs cannot prevent the use in the new Member States, of intellectual property rights that existed in these countries before the accession.

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   Member State	National rights which constitute 'earlier rights' in the sense of Article 8 CTMR
   Austria	A. Trade marks registered with the national office: - Marks filed earlier and still in force; ß 30, AT-TML; B. Madrid Marks: - International registrations having effect in Austria; ß 2 (2), ß 30 AT-TML; C. Unregistered TM: - Unregistered TM which has acquired a certain degree of recognition in the course of; trade ("Verkehrsgeltung"); ß 31, AT-TML; Acquisition through use which has led to a recognition by the relevant public that the; sign is a mark of the claimant ('Verkehrsgeltung').; Right to prohibit use of subsequent (registered) trade mark provided that unregistered; mark, at the date of application for subsequent TM, was known to the relevant public; as designation for the goods or services of the claimant ("als Kennzeichen gegolten; hat") and provided that the subsequent TM had not been used prior to application for; the same period as an unregistered mark.; D. Other signs used in the course of trade: - Trade names (the firm of an enterprise), special designations of enterprises and; designations similar to them.; Acquisition through use.; ß 32, AT-TML, ß 9 (1), (3) of the Law Against Unfair Competition; To the notion of a special designation of an enterprise are assimilated ('stehen; gleich') such business signs ('Geschäftsabzeichen') or other signs designated to; distinguish the business from other businesses (including the get-up or packaging of; goods) which, within the relevant public, are considered to be the distinguishing sign; ('Kennzeichen') of that business. Such other signs are acquired through use which; has led to a recognition by the relevant public that the sign is a sign of the claimant; ('Verkehrsgeltung').; ß 9 (3) of the Law Against Unfair Competition; Right to prohibit use of subsequent (registered) trade mark provided that there is a; risk of confusion.
   Benelux	A. Trade marks registered with the Benelux Office for Intellectual Property: - Registered individual trade marks and collective marks; Articles 2.2. and 2.35 BCIP; B. Madrid Marks: - Registered international marks; Articles 2.2 and 2.10 BCIP; C. Unregistered trade marks: Unregistered trade marks are not recognised under the uniform Benelux Convention; on Intellectual Property.; Article 2.19 BCIP

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	D. Other signs used in the course of trade: General remark: In respect of the Benelux territory, each state must be considered; separately.; Belgium: - Trade name (nom commercial); Article 2.19 BCIP, Article 93 of 'loi du 14 juillet 1991 sur les pratiques du commerce et; sur l'information et la protection du consommateur' and Article 1382 of the 'Code; Civil' (Civil Code).; Acquisition of trade name from its first use in trade. Protection limited to geographical; area where the trade name is used.; Right to prohibit use of subsequent (registered) trade mark.; - Company name (dénomination sociale); Article 2.19 BCIP and Article 65 of 'Code de sociétés du 7 mai 1999'; Acquisition of protection as a company name, in principle, from the date of the; establishment of the company. Protection extends to the whole national territory.; Right to prohibit use of subsequent (registered) trade mark.; Luxembourg: - Trade name (nom commercial)/ company name (dénomination sociale); Article 2.19 BCIP and Article 17, alinéa f, of ‘loi du 27 novembre 1986 réglementant; certaines pratiques commerciales et sanctionnant la concurrence déloyale’.; Right to prohibit use of subsequent (registered) trade mark.; Netherlands: - Trade name; Article 2.19 BCIP and Law of 5 July 1921 on trade names (Handelsnaamwet) and; Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek).; Acquisition: Right to a trade name is acquired by its use; there is a possibility to have; the trade name registered with the Trade Register at the Chamber of Commerce, but; there is no obligation to do so, and doing so does not provide any right. No particular; requirement that the trade name be distinctive and non-descriptive.; Right to prohibit use of subsequent (registered) trade mark where there is a risk of; confusion.
   Cyprus	A. Trade marks registered with the national office: Trade marks registered in Cyprus; Article 14A (1) (a) (i), CY-TML; B. Madrid Marks: Trade marks registered under international agreements and having effect in Cyprus; Article, 14A 81) (a) (ii), CY-TML

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	C. Unregistered trade marks: Unregistered trade marks are not recognised under the law of Cyprus.
   Czech; Republic	A. Trade marks registered with the national office: - Trade marks registered or applied for; Articles 1, 3 (a) (1), 6 and 7 (1)(a), CZ-TML; B. Madrid Marks: - International registrations having effect in the Czech Republic; Articles 3 (a) (2), 7 (1)(a) and 48 (1), CZ-TML; C. Unregistered trade marks: Unregistered signs which have become characteristic through use prior to the filing of; an opposing application and is more than of mere local significance; Article 7 (1)(g), CZ-TML; Acquisition through use in the course of trade.; Scope of protection: Identical to that of a Czech registered mark; Right to prohibit subsequent trade mark if signs are identical or similar and cover; identical or similar goods and services; D. Other signs used in the course of trade: Industrial property right, if it can be affected by the use of the sign applied for; Article 7 (1) (j), CZ-TML
   Denmark	A. Trade marks registered with the national office: - Trade marks registered in Denmark; ßß 3 and 15 (2)(1)(b), DK-TML; B. Madrid Marks: - Trade marks registered under international agreements and having effect in Denmark; ß 15 (2)(i)(c), DK-TML; C. Unregistered trade marks: - TM "by commencement of use"; ß 3 (1)(ii), DK-TML; Acquisition: Right to unregistered trade mark by commencement of its use in; Denmark.; Right to prohibit use of subsequent (registered) trade mark if used for the goods or; services for which it has commenced to be used and for which it is continuously used; ß 15 (4)(ii), DK-TML.; Scope of protection: The same as for Danish registered trade marks, i.e. against the; acts corresponding to those referred to in Article 9(1) (a), (b) and (c) CTMR; ß 4 (1), (2), DK-TML.

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	D. Other signs used in the course of trade: - Company name to which the person concerned has a legal title; The term "company name" is to be given an extensive interpretation and covers not; only private companies such as private firms, limited liability companies, other; commercial companies, secondary trade names but equally foundations, unions,; associations, museums and public institutions.; ß 14 (iv), DK-TML; Acquisition: Company name protection does not require its registration.; Right to prohibit use of subsequent (registered) trade mark, where signs are identical or; similar.; - Signs used in the course of trade; ß 15 (4)(ii), DK-TML; The term "signs used in the course of trade" is to be given an extensive interpretation; and covers, according to Danish law, any commercial meaning or symbol, which can; serve as a connecting link between a business and its customers/users. This includes,; inter alia, trade marks, business names and shop-facades; Right to prohibit use of subsequent (registered) trade mark, where signs are identical or; similar.; - Distinctive titles of protected literary and artistic works; Only titles of protected literary and artistic works fall under this provision. Whether a; literary or artistic work is protected is decided according to the Danish Law on; Copyright.; ß 14 (v), DK-TML; Right to prohibit use of subsequent (registered) trade mark.
   Estonia	A. Trade marks registered with the national office: - Trade marks registered or filed; ß 5 (1) 2) and ß 11 (1) 2), 3), EST-TML; B. Madrid Marks: - International registrations having effect in Estonia; ß 5 (1) 3), and ß 11 (1) 4), 5), EST-TML; C. Unregistered trade marks: - Unregistered trade marks are not protected under Estonian law, unless the marks can; considered to be well-known.; ß 5 (1) 3) and ß 11 (1) 1) EST-TML; D. Other signs used in the course of trade: Business names entered in the commercial register prior to the filing date of the; registration, application or the priority date provided that the area of activity in respect of; which a notation has been made in the commercial register includes the goods and; services for which the trade mark is used to or is going to be used (designates).; Article 10(1) 4), EST-TML; Acquisition of protection as a business name is from date of entry in the commercial; register.; Right to prohibit use of subsequent (registered) trade mark where the signs are; identical or similar and if they are used for the goods and services for which the trade; mark is registered.

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   Member State

   National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR

   Finland

   A. Trade marks registered with the national office: - Trade marks registered in accordance with the Trade Marks Act; ß 14 (1) (6), FI-TML; B. Madrid Marks: - Trade marks protected by international registration valid in Finland; ß 14 (1) (8), ß 53 FI-TML; C. Unregistered trade marks: - Trade mark established on the market; ß 2, FI-TML; Acquisition: Use leading to the unregistered mark becoming established on the; market. Shall be regarded as established if it has become generally known in the; appropriate business or consumer circles in Finland as a symbol specific to its; proprietor’s goods or services.; Scope of protection: Identical to that of a Finnish registered trade mark, i.e. against; acts corresponding to those contained in Article 9 (1)(a), (b) and (c) CTMR.; ßß 1, 2 (3), 6, 14 (1) (6), FI-TML; D. Other signs used in the course of trade: - Trade names ((toiminimi, firma) definition: any name that a natural or legal person is; using in business activities).; - these include secondary trade names ((aputoiminimi, bifirma) natural or legal; person can carry out part of their business under a secondary trade name) and; secondary symbols ((toissijainen tunnus, sekundärt kännetecken) sign, including; figurative signs, used in the course of trade); ßß 1, 2 (2), 3 (2), 6, 14 (1) (6), FI-TML; Acquisition: Use leading to the trade name becoming established on the market.; Right to prohibit subsequent trade mark, if signs can be confused and cover; identical or similar goods or services.; - Distinctive titles of protected literary or artistic work; Right to prohibit the use of a subsequent trade mark if it is composed of or contains; anything that is likely to give the impression of being the title of another’s protected; literary or artistic work; ß 14 (1) (5), FI-TML; - Name of a trader; Right to prohibit subsequent trade mark if signs can be confused and cover identical; or similar goods and services; ßß 1, 6, 14 (1) (6), FI-TML

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   France	A. Trade marks registered with the national office: - Registered trade marks; Article L. 711-4 (a), FR-IP CODE; B. Madrid Marks: - International registrations having effect in France (Article L. 711-4 (a), FR-IP CODE; does not explicitly refer to international registration but implicitly, by using the language; "trade marks registered"); C. Unregistered trade marks: Unregistered trade marks are not recognised under French law; D. Other signs used in the course of trade: - Company name (dénomination sociale) or sign of a company; Article L. 711-4 (b), FR-IP CODE; Acquisition: Protection of the company name from completion of founding documents; of the company.; Scope of protection: In principle, a company name is protected only in the area of; effective activities.; Right to prohibit use of a subsequent trade mark.; Scope of protection: Risk of confusion in the mind of the public.; - Trade name (nom commercial); Article L. 711-4(c), FR-IP CODE; Acquisition: Protection from first use in trade. Must be known throughout the French; national territory.; Scope of protection: Risk of confusion in the mind of the public; - Business sign (enseigne); Article L. 711-4(c), FR-IP CODE; Acquisition: Protection from its first use in trade. Geographical scope: limited, in; principle, to area of activity (rayonnement local).; Right to prohibit use of a subsequent trade mark only if sign is known in the whole; country (enseigne notoire).; Scope of protection: Risk of confusion in the mind of the public.
   Germany	A. Trade marks registered with the national office: - Registered trade marks; ß 4 (1), DE-TML; - including trade marks registered by the former industrial property office of the German; Democratic Republic which were in force on 1 May 1992; these have been extended as; of that date on the remaining territory of the Federal Republic of Germany (ß 4 (1),; Erstreckungsgesetz)

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   Member State

   National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR

   B. Madrid Marks: - Earlier international registrations having effect in the Federal Republic of Germany; ßß 112, 124, DE-TML; - including international registrations under the Madrid Agreement with effect from the; former German Democratic Republic which were in force on 1 May 1992; these have; been extended as of that date on the remaining territory of Federal Republic of Germany; (ß 4 (2), Erstreckungsgesetz); C. Unregistered trade marks: Trade mark acquired by use ('Benutzungsmarke'); Acquisition through use which has led to a recognition by the relevant public that the; sign is a mark of the claimant ('Verkehrsgeltung').; ß 4 (2), DE-TML; Right to prohibit the use of a subsequent trade mark in the whole territory of; Germany, if the recognition exists in the whole of Germany. Not, if recognition is; established only for a particular locality.; ß14, DE-TML; Scope of protection: The same as for registered German trade marks, i.e. against the; acts corresponding to the acts referred to in Article 9 (1) (a), (b) and (c) CTMR.; ß 14 (2) no. 1, 2 and 3, DE-TML; D. Other signs used in the course of trade: Business identifiers ('geschäftliche Bezeichnungen'), namely; - business signs ('Unternehmenskennzeichen'),; - work titles ('Werktitel'); ß 5 (1), DE-TML; A business sign is a sign which is used in the course of trade as the name or firm or; as the special business designation of a business establishment ('Geschäftsbetrieb'); or business enterprise ('Unternehmen'). To the notion of a special designation of a; business are assimilated ('stehen gleich') such business signs; ('Geschäftsabzeichen') or other signs designated to distinguish the business from; other businesses which, within the relevant public, are considered to be the; distinguishing sign ('Kennzeichen') of that business.; ß 5 (2), DE-TML; The name or firm is the official or officially registered designation of the trader. The; special designation of business is a sign used by the trader to identify his business or; undertaking as such, which functions as the name of the business or enterprise.; A work title is the name or other designation of printed publications, films, musical; works, stage works or other comparable works, ß 5 (3), DE-TML; This can be an individual work, a series of works, or a periodical publication. Under; German jurisprudence, this also includes titles of radio or television series, computer; games and video games, possibly also computer programs. It is not required that the; work designated by the work title is protected under copyright law.; Acquisition of rights: - Business signs: - Main rule: If the sign is inherently distinctive, acquisition through use in trade as a; business sign.; If the sign is not inherently distinctive, through acquisition of market recognition; ('Verkehrsgeltung').; - Exception: other business signs ('Geschäftsabzeichen') or other signs designated; to distinguish the business from other businesses are protected only if they have; become known in the course of trade as distinctive signs, i.e., if they have

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	acquired distinctiveness through market recognition ('Verkehrsgeltung'); - Work titles: If the work title is inherently distinctive, acquisition through use in the course of trade,; i.e. normally as from the appearance of the work. The required degree of inherent; distinctiveness is low.; If the work title is not inherently distinctive, acquisition through acquisition of market; recognition ('Verkehrsgeltung').; Right to prohibit use: Right to prohibit unauthorized use of business signs or similar signs where there is a; risk of confusion. If the business sign has a reputation in Germany it is also protected; regardless of likelihood of confusion if the use would be detrimental to, or take unfair; advantage of, the distinctiveness or reputation of the business sign.; ß 15 (2), (3), DE-TML
   Greece	A. Trade marks registered with the national office: - Registered trade marks; Article 4 (2)(a), GR-TML; B. Madrid Marks: - International registrations having effect in Greece; Article 1 of Law No 2783/2000 for the ratification of the Madrid Protocol,; Article 9 of Ministerial Decision No 307/2001 for the implementation of the Madrid; Protocol; C. Unregistered trade marks: Introduction: There are two sets of provisions dealing with the protection of unregistered trade marks; and related signs: (a) trade mark law confers on the owner the right to prohibit; registration of a later trade mark, whereas (b) the law on unfair competition and other; specific provisions deal with the issue of use. As the complementary application of; trade mark law for any matter not directly dealt with in other statutes is generally; accepted, both sets of rules are discussed here.; Acquisition through use in the course of trade. If not inherently distinctive, they must; have also been 'established in the market'.; Necessary conditions of protection: Prior use, likelihood of confusion as to origin.; Article 4 (3) (a), GR-TML; Law 146/1914 on Unfair Competition, Article 13 (1); D. Other signs used in the course of trade: - Company names: Acquisition exclusively through use in the course of trade. Registration is not relevant; for protection, it only serves administrative purposes.; Necessary conditions of protection: Prior use, likelihood of confusion as to origin.; Civil code, Article 58; Law 1089/1980, Article 4-8, as amended by 1746/1988

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	Article 4 (3) (a), GR-TML; Law 146/1914 on Unfair Competition, Article 13 (1); - Trade names and commercial establishment insignia: Acquisition through use in the course of trade. If not inherently distinctive, they must; have also been 'established in the market'.; Necessary conditions of protection: Prior use, likelihood of confusion as to origin.; Article 4 (3) (a), GR-TML; Law 146/1914 on Unfair Competition, Article 13 (1) (2); - Titles of periodical publications: Generally regarded as sui generis exclusive rights, whether or not original enough to; be protected as literary works.; Acquisition through use in the course of trade (i.e. from date of first publication).; Necessary conditions of protection: Prior use, likelihood of confusion as to origin.; Article 4 (3) (a), GR-TML; Law 146/1914 on Unfair Competition, Article 13 (1); - Other distinctive signs; The peculiar shape of the goods or of their packaging, as well as the peculiar get up; or decoration thereof (Iδια?τερος διασχηµατισµ?ς, διακ?σµηση), provided they are; known in the relevant commercial sector as product identifiers of a given trader.; Acquisition through use in the course of trade. They must be capable of performing a; trade mark-like function (i.e. to possess a distinctive character afforded by a certain; degree of originality).; Necessary conditions of protection: Prior use, likelihood of confusion as to origin.; Article 4 (3) (a), GR-TML; Law 146/1914 on Unfair Competition, Article 13 (3); General note: All the exclusive signs referred to above are also protected under Art. 1 of Law; 146/1914 on 'Unfair Competion', especially as regards infringing acts not covered by; the above provisions (e.g. protection of reputed signs for dissimilar goods – dilution; of, or unfair advantage to, their distinctiveness or repute, that is, where likelihood of; confusion is not relevant).
   Hungary	A. Trade marks registered with the national office: - Registered trade marks and trade marks applied for; Article 4 (2), HU-TML; B. Madrid Marks: - International registrations having effect in Hungary; Art. 76/N(1)–(3), 76/V and 4(2) HU-TML; C. Unregistered trade marks: - There is no protection for unregistered trade marks under the Hungarian Trade Mark; Law unless it has been used effectively in the country where the use of the sign without; the consent of the prior user would be contrary to law.

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	Article 5 (2) a), HU-TML; Art. 6 of Act LVII of 1996 on the prohibition of unfair and restrictive market practices: It; shall be prohibited to manufacture, distribute or advertise goods and services without; the consent of competitors if such goods and services have a characteristic; presentation, packaging or labeling (including designation of origin), or to use a name,; mark or designation, by which a competitor or its goods and services are usually; recognized.; D. Other signs used in the course of trade: Earlier personal right of others; Article 5 (1) a), HU-TML; Earlier copyright or industrial property right of others.; Article 5 (1) b), HU-TML
   Ireland	A. Trade marks registered with the national office: - Registered trade marks; Sections 7 (1) and 10 (1), (2), (3), 11 (1)(a), IE-TMA; B. Madrid Marks: - International trade marks; Section 11 (1)(a), IE-TMA; C. Unregistered trade marks: - Unregistered trade marks used in the course of trade; Section 10 (4)(a), IE-TMA; Right to prohibit use of subsequent TM if protected by any rule of law, in particular, the; law of passing off.; The action for passing-off is based upon goodwill acquired by use of the earlier sign.; Goodwill is sometimes called reputation. In Ireland, goodwill can be acquired without; necessarily trading in the territory of the State. The tort arises if a later sign causes a; misrepresentation likely to lead to deception or confusion, with consequent likelihood of; damage to the goodwill or business of the proprietor of the earlier sign. The law is; explained in 'Intellectual Property in Ireland' by Robert Clark and Shane Smyth,; Butterworths, 1997, Chapter 24. Authoritative statements of the law are found in Court; judgements, for example in C. & A. Modes v. C. & A. (Waterford) [1978] Fleet Street; Reports 126; Adidas K.G. v. O'neill & Co. Limited [1983] Fleet Street Reports 76; and; Guiness Ireland Group v. Kilkenny Brewing Co. Limited [2000] Fleet Street Reports; 112.; D. Other signs used in the course of trade: - Business sign used in the course of trade; Section 10 (4)(a), IE-TMA; Right to prohibit use of subsequent TM if protected by any rule of law, in particular, the; law of passing off.; On the law of passing-off, see remarks above under point C.

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   Italy	A. Trade marks registered with the national office: - Registered trade marks; Articles 15 (1), 12 (1)(d), (e), (f), IT-IP CODE; B. Madrid Marks: - International registrations; Article 12 (1)(d), (e), (f), IT-IP CODE; C. Unregistered trade marks ('Marchio di fatto'): - Sign known as a trade mark or as a sign which is distinctive for manufactured goods; or services which have been put on the market or rendered by others (= notorious; prior used mark); Article 12 (1)(b), IT-IP CODE; Right to prohibit use of a subsequent trade mark, where known by the relevant public; throughout Italy or in a substantial part of it.; Scope of protection: Identical or similar signs and identical or similar goods or; services and likelihood of confusion including likelihood of association.; D. Other signs used in the course of trade: - Company name, corporate name, trade name or business signs adopted by others; ('ditta', 'denominazione sociale', 'ragione sociale', 'insegna'); Article 12 (1)(c), IT-IP CODE; Right to prohibit use of subsequent trade mark, where known by the relevant public; throughout Italy or in a substantial part of it.; Scope of protection: Identical or similar signs and identical or similar goods or; services and likelihood of confusion including likelihood of association.
   Latvia	A. Trade marks registered with the national office: - Registered trade marks; Articles 4 (5) (6), LV-TML; B. Madrid Marks: - International registrations in force in the Republic of Latvia; Articles 4 (5) (6) and 39 (1), (2), LV-TML; C. Unregistered trade marks: Unregistered trade marks (and other signs, including domain names, used to; distinguish goods or services) used fairly in the course of trade in Latvia for identical; or similar goods or services.; Article 9 (3) No 4, LV-TML; Right to prohibit the subsequent trade mark where there is a risk of confusion, and, in; consequence of this, a right to oppose the registration of it, where such use could; mislead the consumers as to the origin of the goods or services.

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	D. Other signs used in the course of trade: - Trade names (commercial designations, names of a mass media, or other similar; signs) used in course of trade in Latvia in an identical or similar business sector.; Trade names (commercial designation, name of a mass medium, or other similar sign); of Latvia or of a foreign country that is well-known in Latvia.; Article 9 (3) no 3, LV-TML; Acquisition through fair and lawful use in the course of trade in Latvia.; Right to prohibit use of a subsequent trade mark, if signs can be confused and cover; identical or similar goods and services.
   Lithuania	A. Trade marks registered with the national office: - Registered trade marks or trade marks applied for; Articles 7 (1) (1), 7 (2) (1), LT-TML; B. Madrid Marks: - International registrations in effect in the Republic of Lithuania; Articles 7 (1) (2) and 7 (2) (2), LT-TML; C. Unregistered trade marks: - Only if recognized as well-known marks by a court decision.; Article 7 (1) (3), 9, LT-TML; D. Other signs used in the course of trade: - Trade names/other business identifier; Business names, Article 7 (1) No 4, LT-TML; Scope of protection (general rule) - identical with or similar to the earlier mark (signs); and because of the identity or similarity of the goods and/or services covered by the; marks there exists a likelihood of confusion on the part of the public; the likelihood of; confusion includes the likelihood of association with the earlier mark; Article 7 LT-TML
   Malta	A. Trade marks registered with the national office: - Registered trade marks; Article 3, Article 6, 7 (1) a, MT-TMA; B. Madrid Marks: - Malta is party to neither the Agreement nor the Protocol; C. Unregistered trade marks: - Unregistered trade marks used in the course of trade; Article 6 (4)(a), MT-TMA; Acquisition through use.; Scope of protection: Risk of confusion.; Right to prohibit a subsequent trade mark if signs can be confused and cover identical; or similar goods and services. (Article 6 (2))

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	D. Other signs used in the course of trade: - Other signs used in the course of trade; Article 6 (4)(a), MT-TMA; Right to prohibit a subsequent trade mark if signs can be confused and cover identical; or similar goods and services. (Article 6 (2), MT-TMA); Trade names; Although there is no legal reference to trade names, per se, the Maltese IP office; accepts these as trade marks and will treat them under the same provisions of the law.
   Poland	A. Trade marks registered with the national office: - Registered trade marks and trade marks applied for (provided that the latter are; subsequently registered); Article 132 (2)(i), (ii), (iii), PL - IP Law; B. Madrid Marks: - International registrations having effect in Poland; Article 132 (2)(i), (ii), PL - IP Law; C. Unregistered trade marks: Unregistered trade marks, when well-known and used in the course of trade.; D. Other signs used in the course of trade: -
   Portugal	A. Trade marks registered with the national office: - Registered trade marks; Articles 239 (m) and 242, PT- IP Code; B. Madrid Marks: - International registrations having effect in Portugal; Article 239 (m), PT - IP Code; C. Unregistered trade marks: - an unregistered trade mark has priority rights for registration six months before filing; and the user of it may oppose any application for the said trade mark; Article 277, PT- IP Code; - unregistered signs, which are well-known mark in Portugal; Article 241, PT- IP Code; - unregistered signs having a reputation in Portugal; Article 242, PT- IP Code; Right to prohibit a subsequent trade mark where the signs are identical or similar and; the goods and /or services are identical or similar and in case of well-known trade mark; there is a possibility of the signs being confused with one another or if there is a; possibility of giving rise to an association with the owner of well-known trade mark.; Right to prohibit a subsequent trade mark even when the goods and services are; dissimilar where the use of the trade mark applied for would take unfair advantage of,; or be detrimental to, the distinctive character or the repute of the earlier sign, in case of; the sign having reputation.

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   	D. Other signs used in the course of trade: - Trade name, company name; Article 239 (f), PT- IP Code; Right to prohibit use of a subsequent trade mark, if it is susceptible of causing; consumers error or confusion.; - Name and emblem of an establishment, logotype; Name of establishment is: a pure word sign which identifies and distinguishes a certain establishment; Emblem/Insignia of establishment: has a figurative nature (it may contain word elements as well) and identifies and; distinguishes a certain establishment; Logotype: a sign capable of being graphically represented which identifies an entity providing; services or trading products; Articles 283 - 284, 293, 301, PT-IP Code; Such names, emblems and logotypes are valid for a period of 10 years from the date; of granting.; With the exception of the trade name, all the above-mentioned trade signs are subject; to registration.
   Slovakia	A. Trade marks registered with the national office: - Registered trade marks and trade marks applied for; Article 4 (1) a), b), SK-TML; B. Madrid Marks: - International registrations having effect in the Slovak Republic; Articles 4 (1) a), b), , 36 (1), SK-TML; C. Unregistered trade marks: - Unregistered signs which have become characteristic through use and are not of a; mere local significance (Article 4 (e), SK-TML); Right to prohibit a subsequent trade mark, where signs are identical or similar and; goods and/or services are identical or similar.; D. Other signs used in the course of trade: - Trade names or its essential part entered in the Register of Companies or a similar; register; Article 4 (f), SK-TML; Right to prohibit a subsequent trade mark where the signs are identical or similar and; the goods and /or services are identical or similar

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   Member State	National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR
   Slovenia	A. Trade marks registered with the national office: - Trade marks registered and applied for; Article 44 (2)(a), SL-IP ACT; B. Madrid Marks: - International registrations having effect in the Republic of Slovenia; Article 44 (2)(b), SL- IP ACT; C. Unregistered trade marks: - Unregistered sign, which is in the Republic of Slovenia a well-known mark within the; meaning of Article 6bis of the Paris Convention or Article 16 (3) of the TRIPS; Agreement.; D. Other signs used in the course of trade: - No
   Spain	A. Trade marks registered with the national office: - Earlier trade mark applications and registrations; Article 6 (2)(a) and (c), ES-TML; B. Madrid Marks: - International registrations; Articles 6 (2)(a), 79, ES-TML; C. Unregistered trade marks: - Unregistered trade marks are not recognized under Spanish trade mark law.; D. Other signs used in the course of trade: - Business names, provided that they have been registered or applied for at the Spanish; Patent and Trade Mark Office.; Article 7 (2) (a) and (b), ES -TML; - Business names, designations or corporate names of legal persons not registered at; the Spanish Patent and Trade Mark Office, provided that such sign identifies a person; (enterprise) for the purposes of trade, and that evidence is provided of use or such that; a sign is well-known in the national territory.; Article 9 (1) (d), ES -TML; Right to prohibit use of subsequent trade mark.; Scope of protection: Identical or similar signs and identical or similar goods or services; and likelihood of confusion.
   Sweden	A. Trade marks registered with the national office: - Registered trade marks; ßß 1 and 14 (6), SE-TMA; B. Madrid Marks: - International registrations with effect in Sweden; ß 14 (8), SE-TMA

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   	C. Unregistered trade marks: - Unregistered trade marks established on the market; ß 2 (1), SE-TMA; Acquisition: Use leading to the unregistered mark becoming established on the market.; A sign shall be considered to have become established on the market when it is, within; a significant portion of the circle for which it is intended, known as a symbol for the; goods which are being made available under it.; Scope of protection: Identical to that of a Swedish registered TM, i.e. against acts; corresponding to those contained in Article 9(1)(a), (b), and (c) CTMR; ßß 1, 2 (3), 6, 14 (6), SE-TMA; D. Other signs used in the course of trade: - Trade names; ßß 1, 2 (2), 3 (2), 14 (6), SE-TMA; Acquisition: Use leading to the trade name becoming established on the market; Right to prohibit use of a subsequent TM, if signs can be confused and cover identical; or similar goods and services; - Distinctive titles of protected literary or artistic work; ß 14 (5), SE-TMA; Right to prohibit use of a subsequent TM If it contains an element which is likely to; convey the impression of being the distinctive title of another person's protected literary; or artistic work.; - Name of trader; ßß 1, 6, 14 (6), SE-TMA; Right to prohibit subsequent trade mark if signs can be confused identical or similar; goods or services
   United; Kingdom	A. Trade marks registered with the national office: - Registered trade marks; Section 6 (1)(a), UK-TMA; B. Madrid Marks: - International trade marks (UK); Section 6 (1)(a), UK-TMA; C. Unregistered marks: - Unregistered TM used in the course of trade; Unregistered TM used in the course of trade, if protected by any rule of law, including; that of passing off.; Section 5 (4)(a), UK-TMA; D. Other signs used in the course of trade: - Sign used in the course of trade

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   National rights which constitute 'earlier rights' in the sense of; Article 8 CTMR

   Sign used in the course of trade, protected by any rule of law, including that of passing; off.; Section 5 (4)(a), UK-TMA; Right to prohibit use of a subsequent trade mark; Remarks: The Olympic Symbol Protection Act 1995 contains provisions on the; exclusive use for commercial purposes of the Olympic symbol and certain words; associated with the Olympic games by an individual nominated by the Secretary of; State: such entitlement is not a basis for Article 8(4) CTMR.

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   Bulgaria	A. Trade marks registered with the national office: - Registered trade marks and marks applied for; Articles 10 and 12 (2) (i) (ii), BG-TML; B. Madrid Marks: - International registrations having effect in Bulgaria; Articles 12 (2) (i) (ii) and 69 (2), BG-TML; C. Unregistered trade marks: - Only if well-known in the territory of the Republic of Bulgaria; Article 12 2 (iii), BG-TML; D. Other signs used in the course of trade: - -
   Romania	A. Trade marks registered with the national office: - Registered trade marks and trade marks filed subject to their registration; Articles 3 (b), 4, 6, RO-TML; B. Madrid Marks: - International registrations having effect in Romania; Articles 3 (b), 4, 6 and 65, RO-TML; C. Unregistered trade marks: - Unregistered trade marks are not recognised under Romanian law; Article 4, RO-TML; D. Other signs used in the course of trade: - -

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   Croatia	A. Trade marks registered with the national office: - Registered trade marks; Article 4 (2), HR-TMA; B. Madrid Marks: - International trade marks having effect in Croatia; Article 66, HR-TMA; C. Unregistered marks; - Unregistered marks are not recognised under Croatian Law; D. Other signs used in the course of trade: -
   Turkey	A. Trade marks registered with the national office: - Registered trade marks and trade marks applied for; Articles 1, 7 (b), 8 (1)(a), (b), TR-TML; B. Madrid Marks: - International registrations having effect in Turkey (not explicitly mentioned in the law; but follows from the wording 'trade marks registered.'); C. Unregistered trade marks: - Unregistered trade marks (provided that the rights to the sign were acquired prior to; the date of filing for registration of the trade mark, or the date of priority claimed for the; application for registration and provided that the sign confers on its proprietor the right; to prohibit the use of a subsequent trade mark).; Article 8 (3)(a), (b), TR-TML; D. Other signs used in the course of trade: - Signs used in the course of trade (provided that the rights to the sign were acquired; prior to the date of filing for registration of the trade mark, or the date of priority claimed; for the application for registration and provided that the sign confers on its proprietor; the right to prohibit the use of a subsequent trade mark).; Article 8 (3)(a), (b), TR-TML