24.3.2009 Official Journal of the European Union L 78/1 (Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory) REGULATIONS COUNCIL REGULATION (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Commu- nity, and in particular Article 308 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament (), Whereas: 1 G) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (% has been substantially amended several times (°). In the interests of clarity and rationality the said Regulation should be codified. It is desirable to promote throughout the Community a harmonious development of economic activities and a continuous and balanced expansion by completing an internal market which functions properly and offers conditions which are similar to those obtaining in a national market. In order to create a market of this kind and make it increasingly a single market, not only must barriers to free movement of goods and services be removed and arrangements be instituted which ensure that competition is not distorted, but, in addition, legal conditions must be created which enable undertakings to adapt their activities to the scale of the Community, whether in manufacturing and distributing goods or in providing services. For those purposes, trade marks enabling the products and services of undertakings to be distinguished by identical means throughout the entire Community, regardless of frontiers, should feature amongst the legal instruments which undertakings have at their disposal. For the purpose of pursuing the Community’s said objectives it would appear necessary to provide for () O] C 146 E, 12.6.2008, p. 79. ) OJL11,14.1.1994, p. 1. () See Annex I Community arrangements for trade marks whereby under- takings can by means of one procedural system obtain Community trade marks to which uniform protection is given and which produce their effects throughout the entire area of the Community. The principle of the unitary character of the Community trade mark thus stated should apply unless otherwise provided for in this Regulation. The barrier of territoriality of the rights conferred on proprietors of trade marks by the laws of the Member States cannot be removed by approximation of laws. In order to open up unrestricted economic activity in the whole of the internal market for the benefit of under- takings, trade marks should be created which are governed by a uniform Community law directly applicable in all Member States. Since the Treaty has not provided the specific powers to establish such a legal instrument, Article 308 of the Treaty should be applied. The Community law relating to trade marks nevertheless does not replace the laws of the Member States on trade marks. It would not in fact appear to be justified to require undertakings to apply for registration of their trade marks as Community trade marks. National trade marks continue to be necessary for those undertakings which do not want protection of their trade marks at Community level. The rights in a Community trade mark should not be obtained otherwise than by registration, and registration should be refused in particular if the trade mark is not distinctive, if it is unlawful or if it conflicts with earlier rights.