Directive 1989/104 - First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks - Main contents

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First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks

Official Journal L 040 , 11/02/1989 P. 0001 - 0007

Finnish special edition: Chapter 13 Volume 17 P. 0178

Swedish special edition: Chapter 13 Volume 17 P. 0178

FIRST COUNCIL DIRECTIVE of 21 December 1988 to approximate the laws of the Member States relating to trade marks (89/104/EEC)

THE COUNCIL Of THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Article l00a thereof,

Having regard to the proposal from the Commission (1),

In cooperation with the European Parliament (2),

Having regard to the opinion of the Economic and Social Committee (3),

Whereas the trade mark laws at present applicable in the Member States contain disparities which may impede the free movement of goods and freedom to provide services and may distort competition within the common market; whereas it is therefore necessary, in view of the establishment and functioning of the internmal market, to approximate the laws of Member States;

Whereas it is important not to disregard the solutions and advantages which the Community trade mark system may afford to undertakings wishing to acquire trade marks;

Whereas it does not appear to be necessary at present to undertake full-scale approximation of the trade mark laws of the Member States and it will be sufficient if approximation is limited to those national provisions of law which most directly affect the functioning of the internal market;

Whereas the Directive does not deprive the Member States of the right to continue to protect trademarks acquired through use but takes them into account only in regard to the relationship between them and trade marks acquired by registration;

Whereas Member States also remain free to fix the provisions of procedure concerning the registration, the revocation and the invalidity of trade marks acquired by registration; whereas they can, for example, determine the form of trade mark registration and invalidity procedures, decide whether earlier rights should be invoked either in the registration procedure or in the invalidity procedure or in both and, if they allow earlier rights to be invoked in the registration procedure, have an opposition procedure or an ex officio examination procedure or both; whereas Member States remain free to determine the effects of revocation or invalidity of trade marks;

Whereas this Directive does not exclude the application to trade marks of provisions of law of the Member States other than trade mark law, such as the provisions relating to unfair competition, civil liability or consumer protection;

Whereas attainment of the objectives at which this approximation of laws is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark are, in general, identical in all Member States; whereas, to this end, it is necessary to list examples of signs which may constitute a trade mark, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of othrefusal or invalidity concemning the trade mark itself, for example, the absence of any distinctive character, or concerning conflicts between the trade mark and earlier rights, are to be listed in an exhaustive manner, even if some of these grounds are listed as an option for the Member States which will therefore be able to maintain or introduce those grounds in their legislation; whereas Member States will be able to maintain or introduce into their legislation grounds of refusal or invalidity linked to conditions for obtaining and continning to hold a trade mark for which there is no provision of approximation, concerning, for example, the eligibility for the grant of a trade mark, the renewal of the trade mark or rules on fees, or related to the non-compliance...

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