Reading Between the Lines: A Study on How the Notion of Bad Faith is Interpreted and Applied in the European Union with Regards to European Union Trade Marks

‘Bad faith’ in the European Union trade mark law constitutes an absolute ground for invalidation, while in certain EU Member States it can additionally be treated as a refusal consideration. Therefore, as a notion with severe repercussions for EU trade marks, it deserves a profound scrutiny. This article explores two main themes. Firstly, the paper discusses the openness of the concept of ‘bad faith’ and its impact on the overall legal certainty. The author analyzes the currently applied subjective/ objective approach towards the finding of ‘bad faith’ and puts forward a suggestion that could lead to an increased clarity and objectivity with this regard. The key idea proposed concerns the introduction of a normative model while assessing ‘bad faith’. Secondly, a more procedural angle is undertaken and presents the reader with a substantial non-homogeneity with regards to the practical application of the concept. The notion, under the EU Trade Mark Regulation, is currently used merely as a ground for invalidation, which entails that a trade mark must first be registered in order to be assessed in the light of ‘bad faith’. Meanwhile, the EU Trade Mark Directive provides for the notion being applied not only as a ground for invalidation, but also refusal which means that national offices may apply ‘bad faith’ ex officio already during the process of trade mark application. The author provides perspectives on why aligning EUTMR with EUTMD might be of importance for clarity and consistency in EU trade mark law.