A fight between Bastards

A fight between BastardsIf you have a new trademark the first thing you do is conducting a search as to the availability of a trademark. A sometimes difficult job as the trademark registers are crowded. Nevertheless, when trademarks are revealed often there is room for negotiation (the trademarks are active in a different field of business) or cited trademarks are subject to use requirements (but no use has been found). The strategy is sometimes to file the application and to await an objection.

When the trademark is subsequently registered without problems, nothing stands in the way to use that trademark. However, someone can still make objections years after the registration. These cases are sparse but it does happen, as in the case of the fight between the beer trademark BASTARD and ARROGANT BASTARD. The contested trademark ARROGANT BASTARD was registered since 10 years in the European Union. Only now an invalidity action has been started based on the earlier German trademark BASTARD.

The owner of the ARROGANT BASTARD trademark files a defense and relies on acquiescence. If a party was aware of a registered trademark and tolerates the use of the trademark, this party cannot object the trademark after a period of 5 years. However, the tolerance requires a signal of acceptance or proof of the knowledge. EUIPO does not see any indication of the actual knowledge of the earlier holder and accepts the invalidation request.

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Arnaud Bos

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