(1) The registration of a trade mark shall be declared invalid and cancelled in response to an action in accordance with section 55 or an application in accordance with section 53 if it is opposed by an earlier right within the meaning of sections 9 to 13. The application for a declaration of invalidity may also be based on several earlier rights of the same proprietor.
(2) The registration may not be declared invalid and cancelled because of the registration of an earlier trade mark in so far as the proprietor of the earlier trade mark has tolerated the use of the later trade mark for the goods or services in respect of which it is registered during a period of five consecutive years in the knowledge of this use, unless the application for the later trade mark has been made in bad faith. The same shall apply to the proprietor of an earlier right to a trade mark acquired by use within the meaning of section 4 no. 2, in a well-known mark within the meaning of section 4 no. 3, in a commercial designation within the meaning of section 5 or in a name of a plant variety within the meaning of section 13 (2) no. 4. The registration of a trade mark may further not be declared invalid and cancelled if the proprietor of one of the earlier rights listed in sections 9 to 13 has consented to the registration of the trade mark prior to the filing of the application for a declaration of invalidity.
(3) The registration may not be declared invalid and cancelled because of an earlier trade mark which has a reputation or of an earlier commercial designation which has a reputation if the trade mark or the commercial designation did not yet have a reputation within the meaning of section 9 (1) no. 3, of section 14 (2) sentence 1 no. 3 or of section 15 (3) on the date which is relevant for the seniority of the registration of the later trade mark.
(4) The registration may not be declared invalid and cancelled because of the registration of an earlier trade mark if the registration of the earlier trade mark could have been revoked or declared invalid and cancelled on the date of filing or date of priority of the later trade mark for the following reasons:
1. revocation in accordance with section 49; or
2. absolute grounds for refusal in accordance with section 50.
For the purposes of the examination of likelihood of confusion under section 9 (1) no. 2, the distinctive character of the earlier trade mark on the date of filing or date of priority of the later trade mark shall be taken into account.
(5) If there is a ground for invalidity only for a part of the goods or services for which the trade mark is registered, the registration shall only be declared invalid and cancelled for these goods or services.