Various Aspects of the Application for a Trademark Made in Bad Faith in the Light of EU Case Law

Abstrakt

European Union case law has in recent years brought to the surface numerous decisions that shed new light on the interpretation of bad faith in trademark law. The aim of this article is to present and discuss the premises that, pursuant to the judgments of the European Courts and decisions of the European Union Intellectual Property Office (EUIPO), are perceived as circumstances that may deem an application for a trademark as one made in bad faith. A close examination of the judicial decisions aims at determining how the approach to the concept of bad faith has been shaped in EU case law over the years since the preliminary ruling on the trademark application concerning the Easter bunny (Chocoladefabriken Lindt & Sprüngli). Initially, bad faith was identified with those unfair applications for trademarks aiming at harming a third-party interest that had used a given mark before. The rulings issued in subsequent years clearly indicate that the application for a trademark made in bad faith does not have to be connected with a similar designation used by a third party beforehand. Such an application may derive from an unfair strategy of protecting the applicant’s own designations. What is unfair here is an attempted use of the system of protection of trademarks for purposes other than those for which it serves, through making an application for a trademark for purposes other than the functioning of that trademark.