11. 2. 89 Official Journal of the European Communities No L 40/1 {Acts whose publication is not obligatory) COUNCIL FIRST COUNCIL DIRECTIVE of 21 December 1988 to approximate the laws of the Member States relating to trade marks (89/104/EEC) THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article- 100a thereof, Having regard to the proposal from 'the Commission (1), In cooperation with the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3), Whereas the trade mark laws at present applicable in the Member States contain disparities which may impede the free movement of goods and freedom to provide services and may distort competition within the common market; whereas it is therefore necessary, in view -of the establishment and functioning of the internal market, to approximate the laws of Member States; Whereas it is important not to disregard the solutions and - advantages which the Community trade mark system may afford to undertakings wishing to acquire trade marks; Whereas it does not appear to be necessary at present to undertake full-scale approximation of the trade mark laws of the Member States and it will be sufficient if approximation s - (1) O] No C 351, 31.-12. 1980, p. 1 and O] No C 351, 31. 12. 1985, p. 4. (2) O] No C 307, 14. 11. 1983, p. 66 and O] No C 309, 5.12.1988. (*) OJ No C 310, 30. 11. 1981, p. 22. limited to those national provisions of law which most directly affect the functioning-of the internal market; Whereas the Directive does not deprive the Member States of the right to continue to protect trade marks acquired through use but takes them into account only -in. regard to the relationship between them and trade marks acquired by registration; Whereas Member States also remain free to fix the provisions of procedure concerning the registration, the revocation and the invalidity of trade marks acquired -by registration; whereas they can, for example, determine the form of trade mark registration and invalidity procedures, decide whether- earlier rights should be invoked either in the registration procedure or in the invalidity: procedure or in both and, if" they allow earlier rights to be invoked in the registration procedure, have an opposition procedure or an ex officio examination procedure or both; whereas Member States remain free to determine the effects of revocation or invalidity of trade marks; Whereas this Directive does not exclude the application to. trade marks of provisions of law of the Member States other than trade mark law, such as the provisions relating to unfair competition, civil liability or consumer protection; Whereas attainment of the objectives at which this approximation of laws is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark are, in general, identical in all Member States; whereas, to this end, it is necessary to list examples of signs which may- constitute a trade mark, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings; whereas the grounds for