PROTECTION OF WINE NAMES BY TRADEMARK LAW 117 maintain a balance between the trademark proprietor's right of ownership and free competition. Thus, if invoked by its holder, a prior right can lead to the refusal or cancellation of the subsequent trademark. Article 60 EUTMR lists, on a nonexhaustive basis, prior rights that may conflict with a later trademark and be claimed as a relative ground for invalidity. These prior rights could be separated into signs in the course of trade (II.1.) and rights related to personality and creation (II.2.). Given that the objective of protection underlying these signs and rights is different, different substantive and procedural rules apply to their exercise. Thus, signs in the course of business may be invoked in invalidity proceedings and as soon as the subsequent sign is filed in opposition proceedings. The other rights are merely grounds for invalidity. II.1. Availability Regarding Signs in the Course of Trade The essential function of a trademark is to distinguish the products and services of a company from those of its competitors. As a consequence, to be registered as a trademark, a sign should be available concerning marks identifying the origin of a product or a service, for instance, with regard to earlier trademarks (II.1.1.) or a prior PDO or GI (II.1.2.) and signs identifying an economic activity (II.1.3.). These grounds are relative grounds for refusal that could be claimed not only in opposition proceedings but also nullity and infringement proceedings. II.1.1. AVAILABILITY REGARDING PRIOR TRADEMARKS According to articles 8 and 60(1) EUTMR, prior trademarks concerned are registered trademarks with an effect in the Union (i.e. national trademarks, EUTMs and relevant international trademarks), well-known trademarks under article 6-bis of the Paris Convention37 (i.e. non-registered trademarks of a wellknown character). Such prior trademarks should be considered as grounds for nullity if they are identical or similar to the contested EUTM application and cover identical or similar goods and services [art. 60(1) and 8(1) EUTMR]. This provision is an application of the principle of the trademark speciality, which limits the scope of protection conferred by a trademark to the products and 37 Article 2 of the Joint Recommendation concerning provisions on the protection of well-known trademarks, WIPO, 20-29 September 1999
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