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PART 9 TRANSITIONAL PROVISIONS 152. Application of this Law Unless otherwise provided herein below, the provisions of this Law shall also apply to trade marks in respect of which an application has been filed or which have been registered prior to January 1, 1995, or which have been acquired through use in the course of trade or through notoriety, and to commercial designations protected under the applicable provisions prior to January 1, 1995. 153. Restrictions on the Assertion of Claims for Infringement (1) Where the proprietor of a trade mark registered prior to January 1, 1995, or a trade mark or commercial designation acquired prior to this date through use or notoriety was not entitled under the provisions applicable at that time to any claims for infringement against the use of the trade mark, the commercial designation or an identical sign, the rights resulting from the trade mark or the commercial designation under this Law cannot be asserted against the continued use of the said trade mark, commercial designation or sign. (2) Section 21 shall apply to claims of the proprietor of a trade mark registered prior to January 1, 1995, or a trade mark or commercial designation acquired through use or notoriety prior to this date provided that the period of five years specified in Section 21(1) and (2) shall begin on January 1, 1995. 154. Rights in rem; Enforcement; Proceedings in Bankruptcy (1) Where, prior to January 1, 1995, the right conferred by the application for, or the registration of, a trade mark has become the subject of rights in rem or where the right conferred by the application or registration has been the subject of enforcement measures, the said rights or measures may be entered in the Register under Section 29(2). (2) Subsection (1) shall apply mutatis mutandis if the right conferred by the application for, or registration of, a trade mark is implicated in proceedings in bankruptcy. 155. Licensing Section 30 shall apply to licenses granted prior to January 1, 1995, under the right conferred by the application for, or the registration of a trade mark, by the use thereof or notoriety of a trade mark provided that the said licenses shall benefit from the effect of Section 30(5) only insofar as the rights were transferred, or the licenses were granted to third parties after January 1, 1995. 156. Examination of Trade Mark Applications as to Absolute Grounds for Refusal (1) If a sign was filed prior to January 1, 1995, which under the provisions heretofore in force was excluded from registration for reasons the Patent Office had to take into account ex officio, but which is not excluded from registration pursuant to Section 3, 7, 8 or 10 of this Law, the provisions of this Law shall be applied provided that the application shall be deemed to have been filed on January 1, 1995, and that, irrespective of the original filing date and of any claimed priority, January 1, 1995, shall be decisive for the determination of the seniority for the purposes of Section 6(2). (2) If, upon examining the trade mark application, the Patent Office concludes that the requirements of subsection (1) are complied with, it shall notify the applicant accordingly. (3) If the applicant notifies the Patent Office within a period of two months after the date of service of the notification under subsection (2) that he agrees to the postponement of seniority for the purposes of subsection (1), the application for the sign shall be further processed as an application for a trade mark under this Law. (4) If the applicant notifies the Patent Office that he does not agree to a postponement of the seniority for the purposes of subsection (1), or if he does not make a statement within the period specified in subsection (3), the Patent Office shall reject the application. (5) The applicant may also make the statement under subsection (3) in objection proceedings, appeal proceedings or proceedings on appeals on a point of law dealing with the rejection of the application and pending on January 1, 1995. Subsections (2) to (4) shall apply mutatis mutandis. 157. Publication and Registration If the publication of an application pursuant to Section 5(1) of the former Trade Mark Law was decided prior to January 1, 1995, but the application has not yet been published pursuant to Section 5(2), of the former Trade Mark Law [Warenzeichengesetz], the trade mark shall be registered pursuant to Section 41 without previous publication. If the fee specified in Section 6a(2) of the former Trade Mark Law has already been paid for a request for accelerated registration filed after the decision to publish, the fee shall be refunded ex officio. 158. Opposition Proceedings (1) If the application for a trade mark under Section 5(2) of the former Trade Mark Law or the registration of a trade mark under Section 6a(3) of the former Trade Mark Law in conjunction with Section 5(2) of the former Trade Mark Law was published prior to January 1, 1995, opposition lodged within the period specified in Section 5(4) of the former Trade Mark Law may be based on the grounds for opposition under Section 5(4) of the former Trade Mark Law as well as on the grounds for opposition under Section 42(2). If no opposition is lodged within the period specified in Section 5(4) of the former Trade Mark Law, the trade mark shall be registered pursuant to Section 41, unless the trade mark has been registered under Section 6a(l) of the former Trade Mark Law. Opposition under Section 42 shall not lie from such registration. (2) If opposition under Section 5(4) of the former Trade Mark Law was lodged prior to January 1, 1995, to the registration of a trade mark published under Section 5(2) of the former Trade Mark Law or registered under Section 6a(1) of the former Trade Mark Law, or if an opposition under subsection (1) is lodged after January 1, 1995, the grounds for opposition according to Section 5(4), Nos. 2 and 3, of the former Trade Mark Law shall be further applied, provided that the opposition was based thereon. If the opposition was based on Section 5(4), No. 1, of the former Trade Mark Law, the provision of Section 42(2), No. 1, shall apply instead of this provision. (3) If in proceedings concerning an opposition lodged prior to January 1, 1995, the use of the trade mark on the basis of which opposition was lodged has been contested or if use is contested in such opposition proceedings, Section 43(1) shall apply mutatis mutandis instead of Section 5(7) of the former Trade Mark Law. Sentence 1 shall also apply to appeal proceedings before the Patent Court in cases where such proceedings are pending on January 1, 1995. Sentence 1 shall not apply to appeals on a point of law pending on January 1, 1995. (4) If the opposition is rejected, the trade mark shall be recorded in the Register pursuant to Section 41 unless the trade mark has been registered pursuant to Section 6a(1) of the former Trade Mark Law. Opposition under Section 42 shall not lie from such registration. (5) If the opposition to an application published under Section 5(2) of the former Trade Mark Law is allowed, registration shall be refused. If the opposition to a trade mark registered under Section 6a(1) of the former Trade Mark Law is allowed, the registration shall be canceled under Section 43(2), sentence 1. (6) In the cases referred to in subsection (1), sentence 2, and subsection (4), sentence 1, the application shall not be rejected because of grounds for refusal to be taken into account ex officio. 159. Division of an Application Section 40 shall apply to the division of an application published prior to January 1, 1995, pursuant to Section 5(2) of the former Trade Mark Law, provided that the division may be declared only after the expiration of the time limit for lodging opposition and that the declaration shall only be admissible if an opposition pending on the filing date of the request would be directed after division only against one of the parts of the original application. The part of the original application not affected by opposition shall be registered pursuant to Section 41. Opposition under Section 42 shall not lie from such registration. 160. Period of Protection and Renewal The provisions of this Law concerning the period of protection and renewal of the registration (Section 47) shall also apply to trade marks registered prior to January 1, 1995, provided that, if the period of protection under Section 9(2) of the former Trade Mark Law expires prior to January 1, 1995, the provisions of Section 9(2) of the former Trade Mark Law shall still apply to the calculation of the time limit within which the fees for the renewal of the period of protection of a registered trade mark can effectively be paid before they fall due. 161. Cancellation of a Registered Trade Mark on the Grounds of Revocation (1) If a request for cancellation of the registration of a trade mark under Section 11(4) of the former Trade Mark Law was filed with the Patent Office prior to January 1, 1995, and if the time limit for lodging opposition to the cancellation, specified in Section 11(4), sentence 3, of the former Trade Mark Law has not expired on January 1, 1995, the time limit shall be two months. (2) If an action for cancellation of the registration of a trade mark under Section 11(1), No. 3 or 4, of the former Trade Mark Law was instituted prior to January 1, 1995, the registration shall only be canceled if the action is allowed both under the provisions heretofore in force and under the provisions of this Law. 162. Cancellation of a Registered Trade Mark Because of Absolute Grounds for Refusal (1) If the proprietor of a trade mark was notified prior to January 1, 1995, that the registration of the trade mark is to be canceled under Section 10(2), No. 2, of the former Trade Mark Law, and if the time limit for lodging opposition to the cancellation specified in Section 10(3), sentence 2, of the former Trade Mark Law has not expired on January 1, 1995, this time limit shall be two months. (2) If proceedings for cancellation of the registration of a trade mark because of the existence of absolute grounds for refusal under Section 10(2), No. 2, of the former Trade Mark Law were instituted ex officio prior to January 1, 1995, or if a request for cancellation under that provision was filed prior to that date, the registration shall only be canceled if the trade mark is not protectable under the provisions heretofore in force or under the provisions of this Law. This shall also apply to proceedings instituted after January 1, 1995, under Section 54 in view of the cancellation of the registration of a trade mark recorded prior to January 1, 1995. 163. Cancellation of a Registered Trade Mark Due to Earlier Rights (1) If an action for cancellation of the registration of a trade mark was instituted prior to January 1, 1995, on the ground of an earlier application under Section 11(1), No. 1, of the former Trade Mark Law, or on the ground of any other earlier right, the registration shall, unless otherwise provided in subsection (2), only be canceled if the action is allowed under the provisions heretofore in force as well as under the provisions of this Law. This shall also apply to an action instituted after January 1, 1995, under Section 55 in view of the cancellation of the registration of a trade mark recorded prior to January 1, 1995. (2) Section 51(2), sentences 1 and 2, shall not apply to the cases referred to in subsection (1), sentence 1. In the cases referred to in subsection (1), sentence 2, Section 51(2), sentences 1 and 2, shall apply provided that the time limit of five years shall commence on January 1, 1995. 164. Objection and Direct Appeal The provisions of this Law shall also apply to objections raised prior to January 1, 1995, provided that the time limits of six months and 10 months specified in Section 66(3), sentences 1 and 2, shall commence on January 1, 1995. 165. Transitional Provisions (1) Section 33(3) shall not apply to applications filed with the Patent Office prior to January 1, 1998, for entry of a trade mark in the Register. (2) Up to January 1, 1999, Section 125h shall apply with the proviso that bankruptcy proceedings shall be substituted for insolvency proceedings, bankruptcy court for insolvency court, bankruptcy assets for insolvency assets and receiver in bankruptcy proceedings for receiver in insolvency proceedings.

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