Joris DeeneYes, since Jan. 1, 2021, commercial use of a Union trademark (EUTM) in the United Kingdom no longer counts as ‘genuine use’ within the European Union. A ruling by the President of the Dutch-speaking Enterprise Court in Brussels on 20 February 2025 confirms this harsh reality: a trademark that was used (almost) exclusively in the UK market can be revoked in the EU for non-use, with loss of all trademark rights as a result.
The facts: a conflict over ‘axept’ and ‘axepta’
The case revolved around a dispute between CR7 SERVICES LIMITED, a British company trading under the name “Optomany” , and the BNP PARIBAS banking group.
- The claimant (CR7): Holds the Union word mark “AXEPT” registered in 2014 for financial transaction software, among other things .
- Defendant (BNP): Uses the sign “AXEPTA BNP PARIBAS” for its payment services.
CR7 initiated trademark infringement proceedings and demanded an EU-wide prohibitory injunction of use of “AXEPTA” .
BNP not only defended itself, but went on the counterattack. It asked the president to declare CR7“s ”AXEPT“ mark invalid (because it would merely mean ”accept‘) and, in the alternative, to declare it expired for lack of ’genuine use" within the European Union.
The decision
The president of the enterprise court first examined BNP's counterclaim. After all, if the trademark “AXEPT” has revoked, there can no longer be any infringement either.
The key question was: did CR7 use her trademark “AXEPT” normally within the European Union?
The impact of Brexit
The president confirmed a crucial legal consequence of the Brexit: for purposes of assessing “genuine use” of a Union trademark, use in the territory of the United Kingdom only counts until Dec. 31, 2020. Any use by CR7 in the UK after that date is legally irrelevant to the retention of its Union trademark.
Symbolic use versus normal use
CR7 is a company that, according to the chairman, focuses almost exclusively on the UK market. All evidence presented, such as press releases and website archives, consistently spoke of “UK retailers,” “UK market” and “UK acquirers” .
CR7 did try to prove use within the EU. It submitted a list of transactions in Ireland, Spain and Germany. However, the president was not impressed:
- It involved barely 277 transactions over a four-year period (2021-2024) .
- CR7 says it processes more than 200,000,000 transactions a year.
- So those 277 EU transactions represent only 0.00002% of the total.
The president ruled that this extremely low number amounts to mere “symbolic use” and can in no way be considered “normal use,” which must be aimed at maintaining or gaining market share.
The conclusion
The president vindicated BNP. The Union trademark “AXEPT” was declared revoked for lack of genuine use in the EU. As a direct result, CR7“s original infringement claim was declared ”without subject matter" and thus dismissed.
Legal analysis and interpretation
This ruling is a perfect illustration of the “use it or lose it” principle enshrined in Section 58(1)(a) of the Union trademark regulation (UMV). A trademark serves to distinguish goods or services in the course of trade. If a trademark holder fails to do so for five years, he loses protection.
The definition of “normal use” is essential here. The Court of Justice has repeatedly defined it as a use that is “real” and aimed at “maintaining or obtaining market shares for the protected goods or services.” The use cannot be merely symbolic, minimal or internal.
What makes this case so sharp is its combination with the Brexit. Before 2021, CR7 could perfectly argue that its mass use in the UK was sufficient to retain its Union trademark. Since Jan. 1, 2021, however, that market has become ‘foreign’ for purposes of EU trademark law. The president states unequivocally that CR7 continued to focus exclusively on the UK market and had no intention of obtaining an EU market share.
The case also shows the burden of proof. A witness statement from a CR7 director who spoke of millions of transactions outside the UK was brushed aside by the judge. This testimony not only contradicted the hard data presented (the 277 transactions), but also came from an interested party with no further objective corroboration .
Ironically, the president dismissed BNP's other counterclaim. The judge ruled that “AXEPT” was not merely descriptive of “accept,” because the ‘X’ provided a sufficiently creative and distinctive element . Thus, in principle, the mark was perfectly valid. However, this did not help CR7; a valid trademark that is not used can still be revoked.
What this specifically means
- For trademark owners (especially outside the EU): An EU trademark registration requires an active usage strategy within the EU. A website that is ‘also’ visible in the EU is not enough. You must be able to demonstrate active targeting and commercial activity in the EU market. Make sure you can submit invoices, marketing materials and transaction records for EU countries.
- For (Belgian) entrepreneurs: This ruling presents opportunities. Are you blocked by a competitor's Union trademark that (especially after Brexit) appears to operate only in the UK? Then there is a real chance that you can claim the lapse of that mark. This paves the way for your own trademark registration or use.
Frequently asked questions (FAQ)
What exactly is ‘normal use’ of a trademark?
Genuine use is real, commercial use aimed at creating or maintaining a market share for the goods or services for which the mark is registered. It must be outward-looking and not merely symbolic, sporadic or internal.
How long may I not use my Union Mark before I lose it?
You have a period of five years after the registration of your trademark to start using it ‘normally. After those five years, any interested party can claim the revocation of your mark at any time if you cannot demonstrate continuous use for five years.
Does my website visible throughout the EU count as “normal use”?
Not necessary. Just having a website is passive. You must show that you are actively targeting consumers within the EU and that this leads to commercial transactions. As the court ruled in this case, if all of your marketing and web content is clearly aimed at a non-EU country (such as the UK), this actually shows a lack of intent to serve the EU market.
Conclusion
This ruling highlights that a Union trademark is a ‘use it or lose it’ right, and that since Brexit, the ‘it’ clearly refers to EU territory. Companies that operated their Union trademark only in the UK may have already lost their protection in the EU (and thus in Belgium), even without realizing it. An audit of your trademark use is crucial to securing your intellectual property.
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