When the mark has not been used for years: what to do first
A trade mark that has not been used for years carries a specific risk: it becomes a target for revocation, and every additional year of silence strengthens whoever wants it removed. This page sets out what to check first, what evidence starts to matter, and who decides whether the registration survives.
The legal basis
Regulation (EU) 2017/1001 (EUTMR) allows any interested party to apply for revocation of a European Union trade mark. The ground is non-use: the proprietor has not put the mark to genuine use, without proper reason, for a continuous period after registration or after the last genuine use. The Regulation does not require the applicant to explain the gap. Once the application is filed, the burden shifts: the proprietor must show genuine use, not the other way round.
What changes once years pass
The exposure is not limited to the registration itself. Rights that depend on the mark inherit the same weakness. Licences signed years ago lose leverage once the licensor cannot show recent use of the licensed sign. Opposition and infringement actions based on the mark become vulnerable to a non-use defence raised by the other side.
The same exposure follows into border enforcement. An application lodged under Regulation (EU) No 608/2013 relies on a valid underlying right. If that right is successfully challenged for non-use, the customs application loses its basis before it stops a single shipment.
What to do first
- Gather use evidence dated within the relevant period, for each class and each good or service actually sold — invoices, packaging, dated marketing, marketplace listings. Assign this to the in-house brand or legal team, not to marketing alone.
- Map the evidence against the register: note which classes have real support and which do not. Instruct trade mark counsel to run this comparison before a challenge arrives.
- Check every licence, coexistence agreement and customs application that names the mark. Ask counsel to flag which of them depend on the mark surviving a non-use challenge.
- Decide whether to narrow the specification voluntarily where use is thin, or keep the registration as filed and rely on the evidence gathered. This decision sits with the trade mark owner, advised by counsel.
- If a challenge is already pending, calendar the response deadline immediately and route the file to litigation counsel the same day.
Who decides, and where
Three forums can end up deciding the same question, and the evidence required is the same in each: genuine use, dated, for the goods and services claimed.
| Forum | Who decides | What is examined |
|---|---|---|
| EUIPO Cancellation Division | A revocation application filed directly against the registration | Genuine use evidence for the contested period |
| National court | Non-use raised as a defence or counterclaim in an infringement dispute | The same evidence, assessed within that dispute |
| Customs authority | An enforcement action under an existing application | Whether the underlying right still holds despite a non-use challenge |
If your situation differs
If the same portfolio review turns up an ex-employee named as inventor in a filing abroad, the analysis runs on different facts: see When an ex-employee appears as an inventor elsewhere step.
If the review reaches the technology delivered under the same brand and open-source components turn up in it, the compliance question sits elsewhere: see When open source is found in the delivery: what.
If the brand also carries a token programme and holders start asking for redemption, that pressure follows a separate procedure: see When holders demand redemption and its limits.
What this page does not cover
This page does not establish whether your specific mark has, in fact, been used — that depends on the file, not on the regulation. It does not cover rebranding, licensing renegotiation or the commercial decision to abandon a mark. It does not extend to national marks outside the EU system described here. For a jurisdiction-specific view of what can actually be established from public registries once a dispute starts, see Asset in Poland and the deadline.
Verified
Checked before publication against the current text of Regulation (EU) 2017/1001 (EUTMR) and Regulation (EU) No 608/2013, both sourced from EUR-Lex. This page states the mechanism these Regulations set out. It does not restate specific time limits, fees or article numbers, which depend on the file and change independently of this text.
Related situations
A related starting point, for a different kind of portfolio pressure: When a coexistence agreement is proposed and its limits.
FAQ
What is the first step when the mark has not been used for years?
Establish, in writing and with dates, whether the mark has actually been used for the goods and services registered. Everything else — narrowing the specification, responding to a challenge, renegotiating a licence — depends on that answer.
Which deadline is already running?
A continuous period of non-use starts to run from registration or from the date of last genuine use, whichever is later, under Regulation (EU) 2017/1001 (EUTMR). Once that period has elapsed without genuine use, a third party may apply for revocation at any time.
Who decides, and on what evidence?
The EUIPO Cancellation Division decides direct revocation applications; a national court decides the same question when non-use is raised as a defence. Both look at the same evidence: dated proof of genuine use for the specific goods and services claimed.