Short answer
There is no single “trade-mark evidence” test under EU law. Each issue asks a different factual question, at a different date, and places the practical burden on a different party.
Genuine use requires objective records showing real commercial exploitation of the registered mark for the relevant goods or services during the correct five-year period. Acquired distinctiveness requires proof that the relevant public perceives an otherwise non-distinctive sign as identifying one commercial origin throughout the territory where the original objection exists. Bad faith concerns the applicant's intention at the filing date, inferred from objective and consistent indications rather than asserted dishonesty alone. Dilution requires proof of an actual or seriously likely change in the economic behaviour of consumers of the earlier mark's goods or services. Unfair advantage instead focuses on a benefit obtained by the later sign from the earlier mark's distinctive character or reputation; confusion or damage to the earlier mark is not essential.
In proceedings based on relative grounds, the European Union Intellectual Property Office (EUIPO) normally examines the facts and evidence put forward by the parties. Evidence should therefore be dated, linked to the correct mark, goods, territory and period, and presented as a coherent chain rather than a pile of unexplained documents.
The procedural route determines what must be proved
Regulation (EU) 2017/1001 on the European Union trade mark (EUTMR) separates the issues. Article 7(3) concerns acquired distinctiveness; Article 8(5), reputed marks; Articles 18, 47 and 58, use and non-use; and Article 59(1)(b), bad-faith filing.
An opponent relying on a mark registered for at least five years must prove use only if the applicant makes a valid Article 47 request. In non-use revocation, the proprietor proves use or proper reasons for non-use. An applicant relying on acquired distinctiveness substantiates it. A cancellation applicant alleging bad faith must displace presumed good faith. An Article 8(5) opponent proves reputation, a link between the marks and injury or unfair benefit.
Article 95 makes EUIPO's examination of relative grounds party-driven and permits it to disregard late evidence. Deadlines and the pleaded goods, services and grounds therefore define the evidential record.
Genuine use: prove a real market presence
Genuine use is not established by displaying a registration certificate or asserting that the brand remained available. Commission Delegated Regulation (EU) 2018/625 states:
“The indications and evidence of use shall establish the place, time, extent and nature of use …” —
Article 10(4) identifies packages, labels, price lists, catalogues, invoices, photographs, advertisements and written statements. The file should connect them: invoices show dated external sales; catalogues show the mark and products; advertising shows market-facing activity; turnover, quantities and distribution explain extent.
In Ansul, C-40/01, the Court of Justice distinguished commercial use from preservation of a paper right:
'Genuine use' must therefore be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. —
The assessment is global. Product type, market size, sales cycle, price, frequency and scale matter; low volume is not automatically fatal for specialised or expensive goods. Internal or undated material is weak unless tied to external activity, territory and period.
Use must also match the registered sign, subject to variations that do not alter its distinctive character, and must relate to the goods or services relied on. Partial use may narrow the effective specification. Under Leno Merken, C-149/11, Member State borders are not a separate territorial quota: the market and all circumstances control, although use in one Member State is not automatically enough or automatically insufficient.
Acquired distinctiveness: prove public perception across the relevant territory
Article 7(3) EUTMR applies only to the non-distinctiveness, descriptiveness and customary-sign grounds in Article 7(1)(b)–(d). The applicant must show that, because of use, a significant proportion of the relevant public sees the sign itself as identifying goods or services from one undertaking.
Useful evidence includes market share, sales, duration and geographic spread, advertising reach, independent coverage, industry statements and sound surveys. It must show perception of the sign for the claimed goods, not merely familiarity with the product or company. Sales establish exposure; surveys or independent evidence may show what the public learned from it.
In joined cases Windsurfing Chiemsee, C-108/97 and C-109/97, the Court required an overall assessment and rejected predetermined recognition percentages. Geographic proof is particularly demanding for an EU trade mark. In the joined Nestlé appeals, the Court held:
“the evidence submitted must be capable of establishing such acquisition throughout the Member States of the European Union.” —
That does not require separate evidence for every Member State. Evidence may cover cross-border distribution networks or grouped markets sharing linguistic, cultural or geographic conditions. But unexplained territorial gaps remain dangerous wherever the sign lacked inherent distinctiveness.
Bad faith: infer filing intention from objective facts
Bad faith is assessed at filing. Knowledge of another user's sign is relevant but insufficient. A useful chronology covers what the applicant knew, commercial relationships, disputes, the specification, filing patterns and later conduct that illuminates its intention.
Koton, C-104/18 P, requires relevant and consistent objective indications of an intention to undermine third-party interests contrary to honest practices, or obtain exclusivity outside trade-mark functions. Lindt, C-529/07, treats knowledge, obstruction and the signs' protection and reputation as relevant. SkyKick, C-371/18, confirms that a broad specification or lack of intended use does not automatically prove bad faith. Partial bad faith affects only the goods or services concerned.
CeramTec, C-17/24, clarifies burden and timing. The cancellation applicant adduces relevant and consistent indications; the proprietor may explain a legitimate business strategy. Post-filing circumstances can illuminate filing-time intention, but later-acquired information cannot rewrite it.
Reputation, link and injury must be proved separately
Article 8(5) EUTMR applies where the later sign is identical or similar, the earlier mark has a reputation, and use without due cause would take unfair advantage of or harm its distinctive character or repute:
“the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character …” —
Reputation means knowledge among a significant part of the relevant public in a substantial part of the territory. Evidence includes market share, sales, duration and geography, promotion, surveys and independent coverage. It must predate the contested filing or priority date and identify the mark and goods.
Reputation and similarity do not by themselves prove injury. The opponent must show that the relevant public will establish a link between the marks, assessed from similarity, reputation, distinctive strength, the publics concerned and proximity of the goods or services.
For dilution—detriment to distinctive character—Intel, C-252/07, requires:
“requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered …” —
Future risk may be established by logical deductions, not supposition. Evidence may show weakened uniqueness, altered consumer choice, dispersed brand associations or a credible market mechanism changing purchasing behaviour. Environmental Manufacturing, C-383/12 P, confirms that a bare assertion of blurring is insufficient.
Unfair advantage looks to the later sign's benefit. Under L'Oréal v Bellure, C-487/07, it requires neither confusion nor detriment. Evidence may show image transfer through deliberate imitation, references to the earlier brand, marketing position, evocative similarity, the earlier mark's prestige and market proximity. The applicant may answer with due cause.
A usable evidence file
For any of the five issues, organise the record around a proposition matrix:
- identify the mark, exact goods or services, relevant public and decisive date;
- map each legal element to specific evidence;
- explain author, date, territory, distribution and what each item proves;
- corroborate interested-party statements with independent or transactional records;
- translate relevant passages and comply with EUIPO format and deadlines; and
- address gaps, inconsistent figures, mark variations and alternative explanations directly.
Conclusion
EU trade-mark proceedings reward fit, not volume. Dated market materials prove use; public-perception evidence supports distinctiveness and reputation; objective chronology reveals bad faith; consumer behaviour supports dilution; and image transfer supports unfair advantage.
The party should begin with the legal element, territory, period and burden, then select documents that prove that exact proposition. The same sales report may help show use, acquired distinctiveness and reputation, but it does not answer the different legal question posed by each ground.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.