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Before the opposition department the owners of the trade marks in question do not necessarily have to be represented by lawyers and they can stand up for their interests themselves or entrust such a matter to trade mark agents. For several years there has been a growing tendency towards making opposition dependent on the use of the older trade mark (German Federal Republic; EEC trade mark draft). Whether use has or has not taken place is a question which can generally be decided without needing to resort to complicated questions of law.

An or however will scarcely contribute to the preservation of the trade mark character of the trade mark if the trade mark owner himself uses the trade mark in the wrong way. This can be the case if the mark is used regularly alone, that is without a generic name. The placing of the trade mark in an inconspicuous position on the packaging, in the advertisement or in the text of documents or articles should also definitely be avoided. In these last mentioned instances it is sensible to always put the trade mark in capital letters or between inverted commas.

Colgate and Lucas Bols are surely not direct competitors: the action of CLAERYN against KLAREIN was nevertheless successful. Finally there is the requirement that there should be 'a risk of damage to the owner of the mark'. Only a risk of damage; there need be n~question of actual damage. In the CLAERYN judgement the Court gave a wide interpretation of this requirement: if the attractive power and the 'sales-stimulating' capacity of the trade mark are affected, then the owner can incur damage from this.

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