If your company first registered a trade mark in Germany, France, or Poland and subsequently moved to EU-level protection through an EU trade mark, there is a mechanism worth knowing about. It is called seniority, and it is expressly provided for in Regulation (EU) 2017/1001 (EUTMR).
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What Seniority Means in Plain Terms
Seniority is a legal mechanism that allows you to preserve the seniority of your national trade mark within the EU trade mark system. It does not convert one registration into another, and it does not operate automatically.
The principle is as follows: an EU trade mark claiming seniority retains the legal effect of the earlier national mark in the member state where that mark was registered. If you subsequently choose not to renew the old national registration, you are deemed to retain the same rights you would have had if it had remained in force.
Important: you should only allow a national registration to lapse or choose not to renew it after EUIPO has formally accepted your seniority claim.
The Legal Basis
The seniority mechanism is governed by Articles 39 and 40 EUTMR::
- Article 39 — claiming seniority at the time of filing the EUTM application. This allows seniority to be recorded immediately.
- Article 40 — claiming seniority after the EU trade mark has already been registered, at any point in time. This is relevant, for example, where a national mark was acquired at a later stage.
The full text of Regulation (EU) 2017/1001 is available on EUR-Lex.
When Seniority Is Actually Available
EUIPO examines several mandatory conditions — known as the triple identity requirements. None of them may be circumvented.
There must be a registration, not merely an application
Seniority may only be claimed on the basis of an earlier registration. If your national mark is still at the application stage, there is no legal basis for a claim. In addition, the date of that registration must predate the filing date or priority date of the EUTM application.
The proprietor must be the same person
The proprietor of the EU trade mark and the proprietor of the national mark must be identical. If the rights to the mark have been assigned or have otherwise come to rest with different entities, seniority will not be available.
The signs must be identical
EUIPO requires complete graphic identity between the signs. Even minor differences — a slightly different colour shade, a change in typeface — may result in a refusal. Where the signs are not identical, the Office will reject the seniority claim and allow a period for remedying the deficiency.
The goods and services must correspond
Seniority is available in respect of goods and services that are identical to, or included within, the specification of the EU trade mark. Seniority may be partial:where the specifications do not overlap in full, seniority is claimed only in respect of the items where correspondence exists.
Tied to a specific member state
Seniority operates in relation to the specific member state in which the earlier mark was registered. It is not a "pan-European priority" — it is the preservation of legal effect within the relevant jurisdiction through the EUTM system.
One point worth noting separately: for United Kingdom marks, seniority is no longer available. Following Brexit, UK registrations lost their status as a basis for seniority claims.
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Why It Is Used in Practice
The primary reason is portfolio cost optimisation.Rather than paying renewal fees for a separate registration in each member state every ten years, a company maintains a single EU trade mark — while retaining the legal effect of the earlier national mark.
This is particularly relevant for businesses that started out in one or two countries and subsequently scaled across the EU.
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