Features

When a Revocation Request Goes Too Far: Board of Appeal Maps Abuse of Process

Published: November 4, 2026

Hugo Monteiro de Queirós PLMJ Advogados Lisbon, Portugal INTA Bulletins Correspondent

The EU Intellectual Property Office (EUIPO) First Board of Appeal (the Board) ruling in Decision R 1889/2024-1 of September 15, 2025 (Magenta), is significant for practitioners because it consolidates the abuse of rights framework in EU trademark law while correcting a first instance decision that had treated the same conduct as acceptable commercial behavior.

The Board annulled a Cancellation Division decision and rejected a request to revoke a trademark for non-use. It found that the request was inadmissible because it amounted to an abuse of process.

The Procedural Setting

Deutsche Telekom AG (the proprietor) owns the EU word mark MAGENTA, registered since 2008 for a wide range of goods and services. In August 2021, N-Cubator B.V. (the cancellation applicant) filed an application for revocation of the mark for non-use under Article 58(1)(a) of the EU Trade Mark Regulation (EUTMR), covering all goods and services. It submitted the revocation request following opposition proceedings brought by the proprietor against the cancellation applicant’s EU trademark application for MAGENTA. The proprietor objected that the request amounted to an abuse of process, arguing that the cancellation applicant was a shell company linked to Michael Gleissner, an individual whose activities national trademark offices had previously considered abusive.

The Cancellation Division partially revoked the trademark and rejected the abuse argument. The decision reasoned that:

Findings of abuse should be limited to exceptional cases;
Cancellation applicants benefit from a presumption of good faith; and
Filing multiple revocation requests, including in response to opposition proceedings, may be considered normal commercial behavior.

On appeal, the First Board concluded differently.

Admissibility, Not Merits

The Board treats abuse of process as a preliminary procedural issue that may prevent the case from being examined on its merits, meaning that the abuse must be considered before assessing the trademark’s use. In other words, the question is not, initally, whether the contested mark has been genuinely used; it is whether the applicant may bring the request at all.

This distinction has two practical consequences.

First, the Board may examine certain facts on its own initiative when assessing admissibility. These may include facts derived from the EU Trade Mark Register, materials from earlier EUIPO cases, and decisions of other IP offices. In Magenta, the cancellation applicant was invited to comment on documents from several jurisdictions, including national decisions from the United Kingdom Intellectual Property Office (UKIPO), the High Court of Justice of England and Wales, the Intellectual Property Office of Singapore, a Belgian court, and the Court of The Hague, all relating to filings by Mr. Gleissner or entities linked to him.

Second, the Board does not need to examine, when evaluating abuse of process, whether the trademark was used for specific goods or services. If the request is found inadmissible, the Board does not proceed to an examination of its merits.

The Board may examine certain facts on its own initiative when assessing admissibility.

The Two-Part Abuse of Rights Test

The Board’s reasoning was based on two key principles drawn from Article 63(1)(a) EUTMR and the Court of Justice of the European Union’s (CJEU) case law.

On the one hand, anyone may file a revocation request, without the need to demonstrate a specific interest and even if they have engaged in unfair competition, given the public interest in removing unused marks from the register. On the other hand, no one can rely on EU law for abusive or fraudulent purposes. In exceptional and specific circumstances, a revocation request may itself constitute an abusive practice or be part of one.

Drawing on the CJEU’s judgment in Case C-423/15 of July 28, 2016 (Nils-Johannes Kratzer v. R+V Allgemeine Versicherung AG), the Board set out a two-part test. The objective element requires that, despite formal compliance with EU rules, a combination of objective circumstances shows that their purpose has not been achieved. The subjective element requires that, from a number of objective factors, it appears that the essential aim is to obtain an undue advantage.

The Board emphasized that the two elements should be examined together, based on all the relevant factors. This approach, applied at the stage of admissibility, is similar to the method used in cases involving bad faith, where intent is inferred from objective facts at the merits stage.

Applying the Test in Magenta

The Board acknowledged that, at first glance, the cancellation applicant’s conduct could appear normal: two revocation requests filed within a month against related MAGENTA marks, in apparent response to opposition proceedings brought by the mark’s proprietor. However, the Board stressed that the cancellation request must be assessed in its full context. When the surrounding circumstances were examined, the picture changed.

The Board identified several key factors:

The cancellation applicant was controlled by Mr. Gleissner, whose motives could therefore be attributed to the company.
Mr. Gleissner and related entities had filed an exceptional volume of revocation requests. Earlier EUIPO decisions had already referred to almost 900 such filings over several years.
The volume of trademark, company name, and domain name filings linked to Mr. Gleissner was similarly disproportionate and included filings for well-known third-party signs such as TRUMP TV, BAIDU, TESLA, and IPHONE.
Nothing indicated that the applicant or Mr. Gleissner was active or planned to be active in the markets covered by the contested trademark.
The cancellation applicant, as a shell company without assets, limited Mr. Gleissner’s exposure to procedural costs, with documented non-recovery of cost orders in other jurisdictions.

Taken together, these factors satisfied both the objective and subjective elements. The conclusion was reinforced by the cancellation applicant’s silence throughout the proceedings when faced with evidence calling for a detailed explanation and refutation.

The subjective element requires that, from a number of objective factors, it appears that the essential aim is to obtain an undue advantage.

A Unitary Evidentiary Framework

The decision also clarifies how evidence is handled in these cases. Though abuse of process is analyzed at the admissibility stage, EU trademark proceedings follow a single, consistent approach to evidence.

For instance, the Board relied on Article 95(2) EUTMR and Article 27(4) of the EU Trade Mark Delegated Regulation (EUTMDR) to accept an article filed by the proprietor on appeal, treating it as a relevant addition to evidence already submitted at earlier stages of the proceedings. Conversely, the rules on proof of use do not change. The time limits for submitting proof of use of the contested mark still apply, and that process takes place alongside the assessment of abuse.

A Narrow Ground, Carefully Bounded

The Board made clear that abuse of process is an exception. The general rule remains that any natural or legal person may apply for revocation without showing a specific interest, and the public interest in removing unused marks is reaffirmed. Abuse of process is described as exceptional and specific and cannot be inferred simply from the identity of the applicant or the existence of a dispute between the parties.

Instead, there must be clear evidence of both objective and subjective elements. In this sense, the Board did not dispute the Cancellation Division’s reliance on the presumption of the cancellation applicant’s good faith or its view that inadmissibility for abuse is a narrow exception. The Board’s disagreement related only to the assessment of the surrounding circumstances, not the legal threshold itself.

Key Takeaways

The Magenta decision provides practical guidance for both applicants and trademark owners.

For revocation applicants, Magenta confirms that filings that meet formal requirements may still be rejected if the broader context shows an improper purpose. The decision also confirms that the Board may go beyond the parties’ submissions and consider register data, earlier cases, and decisions of other IP offices when indicators of abuse arise. Not responding to credible abuse allegations is risky: the Board treated the applicant’s lack of response as an additional element supporting inadmissibility. Finally, filing revocation requests in response to opposition proceedings remains acceptable in principle, but will be assessed in context.

For trademark owners, the decision provides a usable template. Objections based on abuse of process should be raised early in the proceedings and supported by evidence. This may include:

The applicant’s broader filing pattern;
Links between the applicant and related individuals or entities;
Lack of real business activity;
The use of companies with no assets that limit cost exposure; and
Consistent findings from other jurisdictions that may help demonstrate the exceptional and specific circumstances of the case.

Above all, Magenta clarifies the architecture of the analysis: admissibility and merits remain separate, the two-part test comprising objective and subjective elements governs the assessment of abuse, and the same rules concerning evidence apply throughout.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. The opinions expressed in this feature are those of the author and do not purport to reflect the views of INTA or its members.