Revocation of a trade mark for non-use

A trade mark that is not used is lost. And it is for the owner — not the applicant — to prove that it uses it.

In brief

The proprietor's rights are revoked if, during an uninterrupted period of five years, the trade mark has not been put to genuine use in the Union (Art. 58 of Regulation 2017/1001).
The burden of proof lies with the proprietor: the Office invites it to prove use; failing evidence, or if the evidence is “manifestly insufficient”, revocation is declared.
Revocation may be partial: it then applies only to the goods or services concerned (Art. 58 § 2).
Effect: the trade mark is deemed not to have had effect as from the date of the application — it is not a retroactive invalidity.
Genuine use is actual use, on the market, aimed at creating or maintaining market share — excluding token use intended solely to preserve the right.

It is the reversal of the burden of proof that explains everything. In an ordinary case, the party bringing the action must prove it. Not here: the party applying for revocation has nothing to demonstrate, and it is for the trade mark proprietor to produce the invoices, packaging, sales figures and campaigns.

A multinational can therefore lose rights not because it does not use its trade mark, but because it has not produced the documents establishing that use. That is precisely what happened on 11 January 2019: the cancellation division of the EUIPO held the evidence of use of the BIG MAC trade mark to be insufficient and declared its revocation in full.

The General Court of the European Union corrected the scope of the decision on 5 June 2024: the revocation applies only to some of the goods and services. The trade mark remains protected for meat sandwiches.

Revocation of a trade mark for non-use

Sources

Where this comes up in the case file

Other glossary entries — Legal concepts