The CJEU establishes a key criterion in trademark opposition

proceedings: an earlier right must also exist on the date of

the decision

In its judgment of February 5, 2026 (C-337/22 P, EUIPO v. Nowhere), the CJEU clarified an issue of utmost importance for the practice of trademark law.

The dispute arose in the context of Brexit, in which an opposition against the trademark APE TEES was based on an unregistered UK right protected by the law of “passing off.” During the proceedings, the United Kingdom ceased to be a member of the European Union, which meant that the right forming the basis of the opposition ceased to have effects within the territory of the European Union.

In this context, the issue was whether it was sufficient that the underlying right was in force on the date that the opposition was filed, or if it needed be in force at the time the EUIPO rendered its decision on the merits.

After analyzing the issue, the Court of Justice of the European Union concluded that the earlier right on which an opposition is based must exist not only on the date of the later trademark application, but also at the time the EUIPO adopts its decision.

As the Court expressly states, “in order for that opposition to be upheld, that that earlier right confer on its proprietor the right to prohibit the use of a subsequent trade mark (…) not only on that date (…) but also until the date on which a decision is taken as to whether the trade mark applied for shall not be registered.” If that right ceases to exist during the proceedings — for example due to expiration, invalidity, or because it ceases to have legal effects within the territory of the European Union — the opposition would not succeed.

Beyond the specific context of this case, the judgment introduces an important clarification with regard to the interpretation of Article 8 of the European Union Trade Mark Regulation: it is not sufficient that the earlier right existed in the past or at the time the opposition was filed; it must continue to produce legal effects when the EUIPO adopts its decision.

From a practical point of view, the judgment highlights the importance of the temporal factor in proceedings before the EUIPO. The effective validity of the earlier right throughout the entire proceedings may prove decisive in the outcome of the dispute, especially for proceedings that last several years.

Link to the resolution: click here

March 18, 2026