126 WINE LAW proprietor of the trade mark, a trade mark shall not be registered where an agent or representative of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor’s consent, unless the agent or representative justifies his action.”. The application of this provision requires either a trademark filed without authorisation or by an agent or representative of its proprietor. As a consequence, the origin of the legitimate rights is general and should not be limited to the European Union or a Member State. The scope of this provision is consistent with the will, which presides over the concept of good faith, to sanction any dishonest commercial practice and register solely legitimate trademarks. This good faith requirement is also applicable to the prior trademark owner, who may not oppose the validity of a trademark, where he consents expressly to the registration of the EUTM before submission of the application for a declaration of invalidity or the counterclaim [art. 60(3) EUTMR]. III.2. A legitimate Exercise of the Trademark Pursuant to article 9 EUTMR, a valid trademark confers exclusive rights for 10 years, renewable by the owner, who is entitled to prevent all third parties not having the owner’s consent from using in the course of trade, concerning goods or services, any sign identical or similar or used in relation to identical or similar goods and services to those for which the trademark is registered or to benefit from its reputation. Thus, affixing the sign to the goods or the packaging of those goods, offering them for sale, importing them, using the sign as a trade or company name, on business paper and in advertising [art. 9(3)] may be prohibited. However, such exclusive right is not absolute and is subject to the good faith of each actor. Therefore, its scope could be limited by legitimate use but also extended in case of bad faith. III.2.1. LEGITIMATE USE MADE BY A THIRD PARTY Recital 21 EUTMR provides that “the exclusive rights conferred by an EU trade mark should not entitle the proprietor to prohibit the use of signs or indications by third parties which are used fairly and thus in accordance with honest practices in industrial and commercial matters. In order to ensure equal conditions for trade names and EU trade marks in the event of conflicts, given that trade names are regularly granted unrestricted protection against later trade marks, such use should be only considered to include the use of the personal name of the
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