The applicant's intention at the heart of bad faith: from CeramTec to Testarossa

Two recent decisions by the CJEU, 19 June 2025, CeramTec (C-17/24) and BGH, 11 September 2025, Testarossa mark a major turning point in the European understanding of bad faith in trademark matters. They are part of a trend that began with Lindt (CJEU, 11 June 2009) and continued with Koton (CJEU, 12 September 2019) and Sky (CJEU, 29 January 2020).

⚖️ The CeramTec judgment (CJEU, 19 June 2025) establishes bad faith as an autonomous and general ground for invalidity, separate from the objective grounds provided for in Article 7 of the Regulation. It affirms that it is the applicant's intention, and not the nature of the sign alone, that determines the lawfulness of the application.

⚖️ The Testarossa judgment (BGH, 11 September 2025) clarifies the purpose and method of this, requiring proof of an intention to cause harm or to exploit trademark law for purposes unrelated to its essential function of indicating origin.

🔹The contribution of the CeramTec judgment

1️⃣Clarification of the grounds for invalidity

The CJEU had to clarify the relationship between:

• objective invalidity, based on the characteristics of the sign (Art. 52(1)(a) and Art. 7(1)(e)(ii) of Regulation 207/2009),

• and subjective invalidity, linked to the bad faith of the applicant (Art. 52(1)(b) .

While the Paris Court of Appeal viewed these grounds as independent but exclusive, to prevent bad faith from compensating for the lack of evidence of a technical ground, the German courts accepted a cumulative interpretation.

⚖️ The CJEU then ruled that the two grounds are independent but not exclusive.

➡️ The judge may base the invalidity on either one or both cumulatively. This independence establishes bad faith as a ground for invalidity in its own right, independent of the conditions of Article 7.

2️⃣ Intent as a central criterion

The Court took a decisive step: even if the sign has no technical effect, bad faith is established if the applicant believed they were protecting an expired technical solution.

What matters is not the nature of the sign, but the intention to circumvent the purpose of trademark law.

Bad faith is assessed on the date of filing, in the light of objective evidence: prior use, economic logic, chronology of events.

📌 This development has two effects:

• it dematerialises bad faith: intent is sufficient, even without concrete effect;

• it universalises the grounds: any strategy without a legitimate purpose can be reclassified.

🔹The contribution of the Testarossa judgment

1️⃣ The German approach: an extension of CeramTec

The Bundesgerichtshof (BGH), hearing the Testarossa case, reiterates the principles laid down by the CJEU:

• bad faith is subjective, assessed at the time of filing,

• determined on the basis of objective evidence,

• and interpreted in the light of honest commercial practices.

But the BGH goes further by structuring the analysis and formalising the evidence.

2️⃣ Two forms of bad faith

The BGH distinguishes between:

🔸 relational bad faith: filing aimed at blocking or parasitising a third party (e.g. a trademark identical to a well-known sign);

🔸 structural bad faith: filing without legitimate economic logic, purely defensive or speculative.

Bad faith is therefore defined as an intention to cause harm or a desire to obtain an exclusive right unrelated to the function of the trademark (indication of origin).

3️⃣ A balanced evidentiary regime

The BGH establishes a two-step mechanism:

• the applicant for invalidity must provide objective and consistent evidence;

• once this presumption has been established, the proprietor must justify the economic rationale for their application.

This approach transposes CeramTec into German law (MarkenG § 8 Abs. 2 Nr. 14, 50 Abs. 1) while ensuring a balance between rigour and legal certainty.

The distinction between:

🇫🇷 a more formal French interpretation, focused on the sign, and

🇩🇪 a more subjective German interpretation, focused on the purpose of the application,

is now tending to disappear.