Judgment_paragraph 48 · Sigla v European Union Intellectual Property Office (T-215/03)

48It is apparent from the foregoing that an opposing party who wishes to rely on the relative ground for refusal referred to in Article 8(5) of Regulation No 40/94 is required to indicate the earlier mark which he is citing in opposition and to prove its alleged reputation. In the light of the considerations in General Motors, cited in paragraph 47 above, paragraph 30, which are applicable to the present case by analogy, it is possible, particularly in the case of an opposition based on a mark with an exceptionally high reputation, that the probability of a future, non-hypothetical risk of detriment to or unfair advantage being taken of the mark cited in opposition by the mark applied for is so obvious that the opposing party does not need to put forward and prove any other fact to that end. However, it cannot be assumed that this is always the case. Indeed, it is possible that the mark applied for does not, at first sight, appear capable of giving rise to one of the three types of risk covered by Article 8(5) of Regulation No 40/94 with respect to the earlier mark with a reputation, even though it is identical with or similar to the earlier mark. In those circumstances, the opposition must be rejected as unfounded unless such a non-hypothetical, future risk of detriment or unfair advantage can be established by other evidence which it is for the opposing party to put forward and prove.