Lack of Intent to Use Alone Does Not Establish Bad Faith

A recent judgment of the General Court of the European Union provides further guidance on an important question of EU trademark law: Under what circumstances can a lack of intent to use a trademark at the time of filing lead to a finding of bad faith?

In its judgment of June 3, 2026 (T-284/25), the General Court confirmed that the mere finding that an applicant did not intend to use a trademark for certain goods or services is not sufficient to establish that the application was filed in bad faith.

This distinction is of considerable practical importance.

Under EU trademark law, at the time of filing, an applicant is not required to specify how or from what point in time it intends to use the trademark for the goods and services claimed. In addition, an EU trademark becomes subject to the requirement of genuine use only after the five-year grace period for use has expired.

The absence of immediate commercial activity—or even circumstances suggesting that certain goods do not currently fall within the applicant’s field of business—therefore does not automatically mean that the trademark application must be regarded as having been filed in bad faith.

Bad Faith Requires Additional Circumstances

A finding of bad faith instead requires additional circumstances demonstrating that the application was filed for purposes inconsistent with honest practices in industrial or commercial matters.

This may be the case, for example, where the application is intended to unfairly undermine the interests of third parties or to obtain an exclusive right for purposes falling outside the trademark’s function of indicating origin.

As a general rule, the burden of presenting evidence and proving the existence of such circumstances lies with the party alleging bad faith.

The judgment therefore underscores that the assessment cannot stop at the question of whether a trademark has already been used or whether its use was imminent. Rather, what is decisive is an overall assessment of the economic context and the objectives pursued by the application.

Practical Significance for Trademark Owners and Applicants

For businesses, the decision is particularly relevant where trademark protection is sought with a view to a possible future expansion of their commercial activities.

It may be legitimate to seek trademark protection for areas that represent a plausible extension of existing business activities, even if the corresponding plans had not yet been implemented at the time of filing. The proximity of the goods or services claimed to the applicant’s existing areas of activity may also play a role when assessing the economic context of such an expansion.

At the same time, the judgment highlights the high threshold for establishing bad faith. Lack of use and bad faith should not be equated without further consideration: indications that a trademark is not intended for immediate use do not, in themselves, establish that the application was filed for dishonest purposes.

For trademark owners and applicants, it may therefore be advisable to maintain clear documentation of the commercial considerations underlying a broader filing strategy—particularly where trademark protection already takes into account future product development or expansion into adjacent areas of business.

Our Associate, Kathrin Mandel discusses the decision in detail in her case note published in GRUR-Prax, Issue 17/2026.

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