93It should be observed that, in order to benefit from the protection introduced by Article 8(5) of Regulation No 40/94, the proprietor of the earlier mark must prove that use of the mark for which registration is sought would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark. The proprietor of the earlier trade mark is not required, for that purpose, to demonstrate actual and present injury to its mark for the purposes of Article 8(5). 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 this 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, Case C-252/07 Intel Corporation [2008] ECR I-8823, paragraphs 37 and 38).
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