Judgment_paragraph 33 · Nute Partecipazioni SpA and La Perla Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-59/08)

33The proprietor of the earlier mark is not required to demonstrate actual and present injury to its mark for the purposes of Article 8(5) of Regulation No 40/94. When it is foreseeable that such injury will ensue from the use which the proprietor of the later mark may be led to make of its mark, the proprietor of the earlier mark cannot be required to wait for it actually to occur in order to be able to prohibit that use. The proprietor of the earlier mark must, however, prove that there is a serious risk that such an injury will occur in the future (see, by analogy, Intel Corporation, paragraph 38).