In its decision T‑327/12, the Court of First Instance (CFI) has found bad faith in a trademark application. The Applicatn registered the trademark “Simca” while there were old but unused similar brands. The earlier trademarks were provably known to the trademark applicant, and he knew the former importance of the Simca car brand.

This made the CFI to assume that the application was made in bad faith in order to utilize the albeit attenuated, but still ongoing reputation of the old brand. Thus in recital 63 the courts finds:

Accordingly, the applicant cannot rely on the mere fact that the earlier marks were no longer used in order to rebut the finding that the former proprietor had been acting in bad faith at the time of registration. As has already been determined, the evidence in the present case establishes that registration of the sign at issue was deliberately sought in order to create an association with the earlier marks and to take advantage of their reputation on the motor vehicle market, even to compete with those earlier marks if they were re-used by the intervener in the future. In that regard, it was not for the former proprietor to divine the intervener’s future commercial intentions as proprietor of the earlier marks, which were regularly renewed; nor was it even for the former proprietor to conclude, in the absence of an application for a declaration of invalidity with respect to the earlier marks, that the intervener ‘did not have the status of a proprietor worthy of protection.’

We judge this decision critically as it helds an unused trademark as beeing enforceable to a certain degree. We wonder how the court had decided if the trade mark applicant had filed requests for revocation against the old trademarks prior to filing its own application.