EU Trademark Non-Use: Genuine Use and Proof of Use Guide
Quick answer: EU trademark non-use can put an EU trade mark at risk after the five-year grace period. The proprietor should be ready to show genuine commercial use within the EU, or proper reasons for non-use, when challenged. Keep dated evidence connecting the mark to the registered goods or services.
What does genuine use of an EU trade mark mean?
Genuine use is real commercial exploitation of a mark in the relevant territory, intended to create or maintain a market for the protected goods or services. Token use made only to preserve a registration is generally not enough. The assessment is fact-specific: the nature of the goods, the market, the scale of the business and the evidence all matter. EUIPO assesses use in the European Union for an EU trade mark.
Use can include sales, offers for sale, advertising tied to actual commercial activity, and use by a licensee with the proprietor’s consent. The sign used should not differ in a way that changes its distinctive character, and the use should relate to the registered goods or services. See the EUIPO guidance on the function of proof of use.
When does the five-year period begin?
For an EU trade mark, the initial grace period runs for five years from registration. After that, if there is an uninterrupted five-year period without genuine use in the EU, a third party may seek revocation for non-use. A registration may also be challenged where use has been suspended for five years. The exact relevant period depends on the proceeding and its dates; check the notice and deadline carefully.
What evidence can prove use?
Build an evidence file that shows the place, time, extent and nature of use. Useful records may include invoices, order confirmations, dated product packaging, catalogues, advertising analytics, distributor agreements, trade-fair materials and archived web pages. Evidence should identify the mark and link it to the relevant goods or services. A pile of undated screenshots or internal documents may carry limited weight without context.
- Place: sales or marketing in the EU territory relevant to the mark.
- Time: records dated within the legally relevant period.
- Extent: meaningful commercial activity, assessed in context rather than by a universal minimum turnover.
- Nature: use of the mark as a trade mark for the registered goods or services.
EUIPO’s standard of proof guidance explains how evidence is evaluated. Preserve original records and keep a short index so each item can be tied to a date, market and product.
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What happens if someone challenges the registration?
In certain proceedings, the proprietor may be required to prove genuine use for some or all of the goods and services relied on. If proof is insufficient, protection may be limited or the mark may be revoked in whole or in part. A non-use challenge can arise during an opposition or cancellation dispute, so evidence planning should happen well before a deadline. For related dispute context, read our EU trademark opposition guide.
Can use of a slightly different logo count?
Sometimes. Use of a variant may count if the differences do not alter the distinctive character of the registered mark. Keep copies of the registration and the actual versions used, and document when each version entered the market. Where a business has rebranded, assess whether the new sign needs its own application rather than assuming the old registration covers it.
Not sure whether your brand use is enough?
Ask our team to review the mark, registration scope and available evidence.
How can a trademark licence support genuine use?
A proprietor can authorize another business to use a mark under a licence. A clear written agreement should identify the mark, goods and services, territory, term, quality controls and reporting obligations. Keep the agreement together with licensee sales and marketing records. Read our trademark risk assessment and filing preparation guide before expanding the protected scope.
Use by a licensee is generally relevant when it is with the proprietor’s consent, but the surrounding evidence still needs to establish genuine market use. Good records protect both the commercial relationship and the registration.
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How to reduce non-use risk
- Calendar the five-year dates for every registration.
- Use the mark consistently on products, websites, invoices and campaigns.
- Keep dated evidence by territory and product/service category.
- Review the registration list as the business changes; new goods may need a new filing.
- Document genuine reasons for non-use where exceptional circumstances prevent use.
Do not wait until a dispute arrives. A quarterly evidence archive is easier to maintain than reconstructing years of activity under a deadline. For broader brand protection, see our guide to whether registering a logo protects a company name and our EU trademark transfer guide.
Protect your trademark portfolio before a challenge
Discuss evidence gaps and next steps with Eesti Consulting.
Frequently asked questions
Does an EU trademark need to be used in every EU country?
Not necessarily. Genuine use is assessed on the facts and the relevant territory; there is no simple rule that every member state must show sales. Obtain advice on the specific market and evidence.
Can a small business prove genuine use?
Yes. The assessment is contextual, not a fixed sales threshold. Keep credible records showing real commercial activity and the mark’s connection to the registered goods or services.
Can I rely only on social media posts?
Posts may help establish dated promotion, but by themselves may not prove the full picture. Combine them with orders, invoices, product material, website records and other evidence.
What if the mark has not been used for five years?
Check whether a proper reason prevented use and review the exact dates and registration scope. Consider a new filing for the sign and goods that are actively used, while seeking case-specific advice.
This guide is general information, not legal advice. EUIPO decisions depend on the facts and evidence in each case.
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