What is the ‘priority rule’ in EU trademark law?

The priority rule is an essential tool for EU trademark owners, since it allows applicants to obtain protection retroactively. However, a recent judgment by the EU General Court has reaffirmed that its use cannot be stretched indefinitely (at least in EU trademark law), as Jordi Lommers explains.  

In its Coloratura judgment (Capella v EUIPO) of 8 October 2025, the EU General Court reinforced the strict application of the priority rule under EU trademark law. In this article, we explain the priority rule and why it is so valuable to trademark owners in the European Union.

What is the ‘priority rule’?

Under trademark law, any person who has applied for a trademark in one country has six months to file an application (for the same mark) in another country. Assuming they do so, the date of the new trademark application will share the same date as the earlier application (based on the prior rights), meaning protection can be effectively obtained retroactively.

Clearly, the priority rule is a powerful tool and is frequently used in practice. For this reason, conditions have been established for exercising priority. For EU trademarks (EUTMs), these rules are laid down in Article 34 of the EU Trade Mark Regulation (EUTMR). This article stipulates, that the priority period is limited to six months and is calculated from the date of the first application.

It is the interpretation of the term "first application" that led to the October Coloratura ruling.

Trademark priority and the Coloratura ruling

In rulings, the Bulgarian applicant Capella EOOD is frequently portrayed as a party that pushes the boundaries of trademark law by filing applications that are not aimed at actual use, but rather at gaining strategic bargaining power.

In this case, Capella filed multiple German trademark applications for the mark ‘Coloratura’ between February and September 2017. It subsequently filed an EUTM application on 30 March 2018, claiming priority based on its application of 28 September 2017. Swiss-based Richemont International filed an opposition against this application, citing its own German ‘Coloratura’ trademark, for which it applied on 9 March 2018.

At issue in this case was whether Capella was allowed to claim the priority of its German application (28 September 2017), even if it had already filed an (identical) application.

In its ruling, the EU Court considered that allowing Capella's priority claim entailed the risk that the priority could be extended indefinitely by repeatedly filing new applications, with previous applications effectively acting as wild cards. Such a practice is inconsistent with the aim and purpose of the legislation, as it undermines legal certainty and could also lead to distortion of competition.

The EU Court went further, stating that, for the reasons explained above, it is only possible in very exceptional cases to claim priority after a prior application has been filed. This is, in fact, only possible when a prior application has been withdrawn, abandoned or refused before it was available for public inspection, without any rights having arisen from it and without it having previously served as a basis for claiming priority.

Since Capella's application of 21 February 2017, had already been published, it was considered the first application. The deadline for claiming priority for this application had already expired, meaning that Capella could no longer claim priority. Consequently, the filing date for Capella's EU application now follows that of Richemont International’s, and Capella cannot claim prior rights.

What does this EU trademark priority ruling mean in practice?

The ruling confirms that the priority rule in EU trademark law is applied narrowly. Once a first application has been filed and the six-month deadline has expired, it is not possible to claim priority by filing a subsequent application.

For this reason, it's advisable to consider potential expansion to other countries before filing your first trademark application. You can still decide to register elsewhere six months after the initial application, but you will lose the option to claim priority and obtain an earlier application date.