What is meant by the requirement of Availability?

A trademark is available insofar as there are no earlier conflicting rights. This requirement constitutes a relative ground for refusal.

This means that a trademark shall not be registered upon opposition by the proprietor of an earlier right if, among others:

• it is identical or similar with an earlier trademark and the goods or services for which registration is applied for are identical with the products or services for which this earlier trademark is registered;
• it is identical with or similar to an earlier trademark and the goods or services for which registration is applied for are identical with or similar to the goods or services for which this earlier trademark is registered, if there exists a likelihood of confusion on the part of the public on the territory in which the earlier trademark is registered;
• it is identical with or similar to an earlier trademark with a reputation and where the use without due cause of the trademark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trademark; or
• the use thereof can be prohibited based on a prior application for a designation of origin or a geographical indication; or
• the use of the trademark can be prohibited based on the existence of earlier rights on a non-registered trademark or of another sign used in the course of trade of more than mere local significance.