Judgment_paragraph 63 · Vincenzo Fusco v European Union Intellectual Property Office (T-185/03)

63That finding must be upheld. If the applicant holds a national trade mark which predates the Community trade mark ANTONIO FUSCO and which is, at least in substance, the same as the Community trade mark applied for, it is for him, if he considers that he is so entitled and if he so wishes, to seek its protection by means of opposition or annulment proceedings or, where appropriate, before the competent national court in the context allowed by Article 106 of Regulation No 40/94, as the case may be. By contrast as long as the earlier Community trade mark ANTONIO FUSCO is in fact protected, the existence of a national registration predating that Community mark is irrelevant in the context of opposition to a Community trade mark application, even if the Community trade mark applied for is the same as a national trade mark held by the applicant which predates the opposing Community trade mark (see, to that effect, concerning the existence of an earlier trade mark as an absolute ground for refusal to register, Case T-6/01 Matratzen Concord v OHIM — Hukla Germany (MATRATZEN) [2002] ECR II-4335, paragraph 55).