Rights-preserving use of trademarks under scrutiny in times of economic restraint. Why now is the best moment for an IP check.

Many companies will face similar challenges in 2025: Funding programmes are being phased out or cut, the investment climate is subdued, innovations are being postponed. It is precisely in this phase of economic restraint that brand portfolios can easily take a back seat. Yet now is the ideal time to scrutinise unused IP rights – before apparent security becomes a real risk.

Why “protection” without use can be deceptive

“I thought registered was protected.” “We registered it years ago – I thought that was enough.” Sure – it is a thought many trademark owners share. But the truth is: registering a trademark and forgetting it may turn out to be a costly assumption.

You have heard about the saying: “Diamonds and trademarks are forever”? We would add: “but only when they shine”.  In fact, anyone who registers a trademark but does not use it for years risks losing all protection.

Trademarks only offer long-term protection if they are actively used. A registered trademark that has not been used for more than five years (Outside the EU, this period may be shorter, often 3 years) without interruption is vulnerable for cancellation (Except if there are justifiable reasons for non-use or commencement or resumption of use). The same applies in legal or opposition proceedings: An unused trademark is hardly enforceable against third parties – it often becomes an empty shell.

Risks of non-use

• Revocation
  After expiry of the grace period, any third party may submit an application for revocation.
• Vulnerability in opposition and cancellation proceedings
  Your own trademark does not protect you if you cannot prove its use – an often-underestimated risk.
• Market loss and imitators
  Anyone who merely “parks” IP rights risks competitors registering similar trademarks or securing market shares.
• Loss of value in the IP balance sheet
  Unused brands lose economic relevance – especially when it comes to licensing, valuation, or transactions.

What is considered right-preserving use?

The following conditions must be met for a trademark to be deemed to have been used to preserve rights within the meaning of trademark law, the so-called “genuine use”:

• Serious use: The trademark is actually and commercially used – not just symbolically or internally.
• In the protected territory: Use must take place in the EU (for EU trademarks), in the relevant national market (e.g., Benelux) or for export.
• For the protected goods/services: Use must be within the scope of the specifically registered classes.
• Within a certain period, mostly five years after registration or last genuine use.

What evidence counts?

Common and recognised sources of evidence include the following elements:

• Distribution: invoices, delivery notes, proof of dispatch, sworn declarations
• Packaging/products: photos with visible brand logo, labels, samples
• Online activity: web pages, screenshots with timestamps
• Advertising & media: print ads, newsletters, social media campaigns
• Events & catalogues: exhibition catalogues, leaflets, dated marketing material
• Press relations: reports in trade magazines or regional media
• Market research: reports on market penetration, target group reach, …
• Use by third parties: licence agreements, franchise relationships, …
• Enforcement: documentation relating to warning letters and legal proceedings against third parties.

All evidence must be specific in terms of relevant period, territory, and subject matter – and come from reputable sources.

Tip: To maximise legal certainty, it is best to provide a set of complementary evidence – for example, marketing content, dated invoices, and references from independent sources to form a robust and persuasive bundle.

Act now – before it is too late

Many IP rights that were registered in 2020 or earlier are now entering the critical phase of the use obligation. Older rights may also be affected. Those who fail to act may lose established brand names – or give away IP assets.

In economically restrained phases, such as the current one, it is easy to lose sight of such risks. A targeted IP check is particularly worthwhile now to detect unused, jeopardised, or incompletely used IP rights.

Our checklist will help you with an initial internal assessment of whether there is a need for action – for example, to secure existing trademark rights or for targeted subsequent registration. Contact us.

We will be happy to assist you with the evaluation, clarify open questions, and support you individually – whether as part of a portfolio check of your IP rights, the documentation of use evidence, or the filing of a new application.

Good to know: European SMEs can still benefit from financial support under the EUIPO SME Fund, which co-finances trademark and design applications. If you are eligible, you could receive up to €700 in reimbursements – making it the ideal moment to act strategically and cost-effectively.

We are happy to help you check eligibility and guide you through the application process.