Intel Corporation relied on its famous mark against the registration of 'INTELMARK' for marketing services, arguing that the public would make a mental association with the Intel brand and that its distinctiveness would be diluted.
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The CJEU set a rigorous evidential standard: in order to succeed under Article 8(5) EUTMR, the proprietor of the reputed mark must prove that there is a real and present, not hypothetical, risk of injury to the distinctiveness or reputation of the mark, or an unfair advantage obtained by the third party.
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Mere mental evocation, the fact that the public thinks of Intel when it sees INTELMARK, is not enough on its own. Concrete or likely harm must be shown.
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This is an important clarification: the extended protection of reputed marks does not operate automatically whenever there is some similarity. Proof of harm remains mandatory, even though the standard is less strict than in cases of direct confusion.