Judgment_paragraph 40 · Spa Monopole, compagnie fermière de Spa SA/NV v European Union Intellectual Property Office (T-67/04)

40The Court notes, as a preliminary point, that the purpose of Article 8(5) of Regulation No 40/94 is not to prevent registration of any mark which is identical with a mark with a reputation or similar to it. The objective of that provision is, notably, to enable the proprietor of an earlier national mark with a reputation to oppose the registration of marks which are likely either to be detrimental to the repute or the distinctive character of the earlier mark, or to take unfair advantage of that repute or distinctive character. In that connection, it should be made clear that the proprietor of the earlier mark is not required to demonstrate actual and present harm to his mark. He must however adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment.

Spa Monopole, compagnie fermière de Spa SA/NV v European Union Intellectual Property Office (T-67/04)

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