Wine Law

28 the degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought in the European Union 57 . Case law considers that: “(…) in the context of the overall assessment of the existence of the applicant's bad faith, account may also be taken of the origin of the contested sign and of its use since its creation, of the commercial logic underlying the filing of the application for registration of that sign as an EU trade mark, and of the chronology of events leading up to that filing ” 58 . Situations likely to be constitute bad faith are diverse. Among the examples cited by EUIPO, bad faith is found when it can be inferred that the purpose of the EUTM applicant is to ‘free- ride’ on the reputation of the invalidity applicant and take advantage of that reputation 59 , where an EUTM owner tries to artificially extend the period of grace for non-use, for example by filing a repeat application of an earlier EUTM 60 . The purpose is to determine the real purpose of the commercial logic behind the applicant’s application. The existence of a direct or indirect relationship between the parties prior to the filing of the EUTM, for example a pre-contractual, contractual or post-contractual relationship is such an indicator of bad faith that it has been autonomously consecrated. 2) Indeed, Article 8.3 EUTMR states that “ Upon opposition by the proprietor of the trade mark, a trade mark shall not be registered where an agent or representative of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor's consent, unless the agent or representative justifies his action ”. The application of this provision requires a trademark filed without authorisation and by an agent or representative of its proprietor. As a consequence, the origin of the legitimate rights is general and should not be limited to the European Union or a Member State. The scope of this provision is consistent with the will, which presides over the concept of good faith, to sanction any dishonest commercial practice and to register solely legitimate trademarks. 57 ECJ, 11 June 2009, Chocoladefabriken Lindt , C-529/07, §53. 58 TEU 23 May 2019, Ann Taylor T-3/18 and T-4/18 §54. 59 TEU, 14 May 2019, NEYMAR T-795/17. 60 TEU 13 December 2012, T Pelikan -136/11, §27.