March 2026
Brands and Advertising
EUIPO Board of Appeal confirms invalidity of ‘Breitling for women’ EUTM for bad faith
On 20 February 2026, the EUIPO Board of Appeal confirmed the Cancellation Division’s finding of bad faith under Article 59(1)(b) EUTMR and declared EUTM ‘Breitling for women’ invalid in its entirety in case R 0543/2025‑5.
The EUTM covered cosmetics and perfumery in Class 3 and reproduced the reputed earlier trade mark in full, adding only a basic English expression indicating target consumers.
EUTM proprietor argued that there exist other trade marks including the word ‘Breitling’ registered in relation to clothes (i.e., THOMAS BREITLING), allegedly a ‘more similar [sector] to the watches sector’ than the cosmetic/perfumery sector, and that this invalidates Breitling SA’s application. However, this claim was quickly dismissed given the existence of a coexistence agreement allowing the name ‘Thomas Breitling’ to be used in very specific conditions, preventing any confusion with BREITLING.
The Board concluded that the lack of persuasive explanation of the commercial logic of choosing this specific phrase, combined with the broader strategy in a pattern of filings of well-known third-party marks without consent constituted key evidence allowing for a finding of bad faith at the time of filing the application.
Furthermore, the wide recognition BREITLING has established, which inevitably meant that, by 23 November 2020 (the time of filing the application), the EUTM proprietor knew of the existence, use, and reputation of this earlier mark, in the absence of a commercially justifiable reason for adding ‘for her’ at the end of this well-known trade mark meant that the EUTM proprietor in fact intended to abuse the trade mark system (within the meaning of SkyKick para 75) to take unfair advantage of the earlier mark’s reputation.
For more information on bad faith in trade mark applications, see our article from Saskia van der Meijden-Bullens here.
CJEU issues ruling in APE TEES on post-Brexit EUIPO trade mark oppositions
On 18 March 2026, the European Commission IP Helpdesk reported on the CJEU ruling in Case C-337/22 on whether UK-only earlier rights can support an EUIPO opposition when the EUIPO decision is issued after the Brexit transition period.
The dispute concerned an EU trade mark application for APE TEES and an opposition under Article 8(4) of Regulation 207/2009 relying on UK passing off and UK unregistered marks.
The CJEU held Article 8(4) requires both prior acquisition and continued enforceability at the time EUIPO decides, and UK law ceased to be “law of a Member State” after 31 December 2020, with no relevant Withdrawal Agreement transition, so the opposition failed.
For a further background on this ruling, see our article by Louise Popple, here.
High Court issues judgment on relevant date for absolute grounds in re-filed UK trade mark applications
On 23 February 2026, the High Court (Chancery Division) issued its judgment in Parabolica Ltd v Tesla Holding AS [2026] EWHC 386 (Ch) on the relevant date for assessing absolute grounds, including bad faith under section 3(6) of the Trade Marks Act 1994, for UK applications re-filed from pending EU trade mark applications under Article 59(1) of the EU UK Withdrawal Agreement.
The Court held that the assessment date is the EU filing date, not the UK re-filing date, and rejected that the EU priority date could be relevant.
The Court found that Schedule 2A paragraph 25 is directed to precedence of rights, but Article 59(1) has direct effect via section 7A of the European Union (Withdrawal Agreement) Act 2020 and deems the UK application to have the same filing date as the EU application for all purposes.
The Court remitted the matter to the UKIPO for reassessment of bad faith using the EU filing date, set aside the costs order below, and noted that any further appeal is a second appeal requiring permission under CPR 52.7.
For further details on this decision, see our article by Louise Popple here.
