(1) The action for revocation (section 49) or a declaration of invalidity because of the existence of earlier rights (section 51) shall be brought against the party registered as the proprietor of the trade mark or his successor. The action shall be inadmissible if, concerning the same subject matter of dispute between the parties,
1. a decision in accordance with section 53 has already been taken,
2. an application in accordance with section 53 has been filed with the German Patent and Trade Mark Office.
Section 325 (1) of the Code of Civil Procedure shall apply accordingly.
(2) The following shall be entitled to file the action:
1. in cases of an application for revocation, any person,
2. in cases of an application for a declaration of invalidity because of the existence of earlier rights, the proprietors of the rights listed in sections 9 to 13,
3. in cases of an application for a declaration of invalidity because of the existence of an earlier indication of geographical origin (section 13 (2) no. 5), the party entitled to assert rights in accordance with section 8 (3) of the Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb).
(3) If the action for a declaration of invalidity has been lodged by the proprietor of a registered earlier trade mark, he shall prove in response to an objection by the defendant that the trade mark has been used in accordance with section 26 within the last five years prior to the filing of the action, in so far as an opposition has no longer been possible at this date for at least five years. If the five-year period of non-use ends after the action has been lodged, the claimant shall prove in response to an objection on the part of the defendant that the trade mark has been used in accordance with section 26 within the last five years prior to the conclusion of the oral hearing. If the earlier trade mark had already been registered for at least five years on the date of filing or date of priority of the later trade mark, the claimant shall further prove in response to an objection on the part of the defendant that the registration of the earlier trade mark could not have been revoked and cancelled in accordance with section 49 (1) on this day. Only those goods or services for which use has been proved shall be taken into account in the decision.
(4) If prior to or subsequent to the lodging of the action the right arising from the registration of the trade mark has been transferred or passed to another person, the decision on the merits themselves shall also be effective and executable against the successor. Sections 66 to 74 and 76 of the Code of Civil Procedure shall apply accordingly to the power of the successor to accede to the legal dispute.
(5) The court shall notify the German Patent and Trade Mark Office of the date on which the action was brought. The German Patent and Trade Mark Office shall note the date of bringing the action in the Register. The court shall send a copy of the final judgment to the German Patent and Trade Mark Office. The German Patent and Trade Mark Office shall enter the result of the proceedings in the Register together with the date on which the judgment became final.