Trademark law: Abusive trademark registration (Federal Supreme Court)

The absence of an intention to use at the time of application leads to the invalidity of the registered trademark.

“Based on the basic legal rule that the party who derives rights from a fact must prove it (ZGB 8), the party who invokes this ground for nullity generally bears the burden of proof for the lack of intention to use the property (…). However, it should be noted that the lack of intention to use the property is a negative and, moreover, internal fact that can hardly be proven positively. It can therefore be assumed that, as part of the duty to cooperate, the opposing party may be required to document or at least assert the reasons why the deposit in its specific case forms part of a trademark strategy based on fairness, despite the inconsistencies presented by the plaintiff. If this explanation appears implausible to the judge, the abstract evidence of the typically defensive constellation must suffice as part of the overall assessment (…)” Federal Supreme Court of 26.01.2024 (4A_602/2023).