Judgment of the General Court (Fifth Chamber) 16 September 2026

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

16 September 2026 ( * )

( EU trade mark – Invalidity proceedings – EU figurative mark Remington SYNERGY WORLD – Absolute ground for invalidity – Bad faith – Article 59(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑885/25,

Sudex OÜ, established in Maardu (Estonia), represented by L. Sarāne-Reneslāce, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Ammunition Operations LLC, established in Wilmington, Delaware (United States), represented by J. Gracia Albero, lawyer,

THE GENERAL COURT (Fifth Chamber),

composed of M. Sampol Pucurull, President, T. Pynnä (Rapporteur) and W. Valasidis, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Sudex OÜ, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 October 2025 (Case R 2455/2024-4) (‘the contested decision’).

Background to the dispute

2 On 2 March 2023, the intervener, Ammunition Operations LLC, filed with EUIPO an application for a declaration of invalidity in respect of the EU trade mark which had been registered following an application filed on 2 March 2018 for the following figurative sign:

3 The goods covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 18 and 25 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:

– Class 18: ‘Walking staffs; luggage, bags, wallets and other carriers; umbrellas and parasols; saddlery, whips and apparel for animals’;

– Class 25: ‘Footwear; clothing; headgear; shoes; hats’.

4 The grounds relied on in support of the application for a declaration of invalidity were, first, the absolute ground for invalidity referred to in Article 59(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) and, secondly, the relative ground for invalidity referred to in Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) and (5) of that regulation.

5 The application for a declaration of invalidity was based on the following earlier rights:

– the EU word mark REMINGTON, filed on 1 April 1996 and registered on 10 March 1998 under number 64634 for goods in Class 13 corresponding to the following description: ‘Firearms and ammunition’ (‘earlier mark No 1’);

– the EU word mark REMINGTON UMC, filed on 6 May 2009 and registered on 21 October 2009, with priority of 8 December 2008, under number 8282329 (‘earlier mark No 2’).

6 The goods covered by earlier mark No 2 were in Classes 2 and 13 and corresponded, for each of those classes, to the following description:

– Class 2: ‘Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colourants; mordants; raw natural resins; metals in foil and powder form for painters, decorators, printers and artists; coatings; preservatives; protective coating in the nature of a polymer sealant used to improve resistance to wear and marring for exterior use on firearms’;

– Class 13: ‘Firearms; ammunition; ammunition and projectiles; explosives; fireworks; ammunition for firearms; holders for ammunition; launchers for ammunition; medium calibre ammunition; pellets; bullets; rockets; shells; fuses for explosives; cartridges for firearms; bags for carrying firearms; protective cases adapted for firearms; protective shields adapted for firearms; scrapers for cleaning firearms; breeches of firearms; covers for firearms; barrel reflectors for firearms; firearm sights; foresights for firearms; sight protectors for firearms; sights, other than telescopic, for firearms; silencers for firearms; tripods and stands for firearms; cleaning brushes for firearms’.

7 On 5 November 2024, the Cancellation Division rejected the application for a declaration of invalidity.

8 On 20 December 2024, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

9 By the contested decision, the Board of Appeal upheld the appeal. Contrary to the Cancellation Division, it found that the applicant was acting in bad faith at the time the application for registration was filed and declared the contested mark invalid on the basis of Article 59(1)(b) of Regulation 2017/1001.

Forms of order sought

10 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO and the intervener to pay the costs.

11 EUIPO contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs in the event that a hearing is held.

12 The intervener claims that the Court should:

– dismiss the action;

– order the applicant to pay the costs, including those incurred in connection with the appeal before EUIPO.

Law

13 The applicant relies on a single plea in law, alleging infringement of Article 59(1)(b) of Regulation 2017/1001. It submits that the Board of Appeal did not take sufficient account of the evidence submitted by the parties before EUIPO and incorrectly assessed its respective relevance or probative value. In those circumstances, the Board of Appeal was not entitled to conclude that the application for registration of the contested mark had been filed in bad faith.

14 In accordance with Article 59(1)(b) of Regulation 2017/1001, an EU trade mark is to be declared invalid on application to EUIPO or on the basis of a counterclaim in infringement proceedings, where the applicant was acting in bad faith at the time the application for registration of the trade mark was filed. Where the applicant for a declaration of invalidity seeks to rely on that ground, it is for that party to prove the circumstances which substantiate a finding that the EU trade mark proprietor was acting in bad faith when it filed the application for registration of that mark, good faith being presumed until proven otherwise (see judgment of 6 July 2022, Zdút v EUIPO – Nehera and Others (nehera) , T‑250/21, EU:T:2022:430, paragraph 34 and the case-law cited).

15 If a concept set out in Regulation 2017/1001 is not defined by that regulation, its meaning and scope must be determined by considering its usual meaning in everyday language, whilst also taking into account the context in which it occurs and the objectives pursued by that regulation. That applies to the concept of ‘bad faith’ referred to in Article 59(1)(b) of that regulation, in the absence of any definition of that concept by the EU legislature (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraphs 43 and 44 and the case-law cited).

16 While, in accordance with its usual meaning in everyday language, the concept of ‘bad faith’ presupposes the presence of a dishonest state of mind or intention, that concept must also be understood in the context of trade mark law, which is that of the course of trade. Thus, the absolute ground for invalidity referred to in Article 59(1)(b) of Regulation 2017/1001 applies where it is apparent from relevant and consistent indicia that the proprietor of an EU trade mark has filed the application for registration of that mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraphs 45 and 46).

17 The intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative or judicial authorities. Consequently, any claim of bad faith must be the subject of an overall assessment, taking into account all the factual circumstances relevant to the particular case. It is only in that manner that a claim of bad faith can be assessed objectively (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraph 47 and the case-law cited).

18 The factors taken into account by the case-law in the context of the global analysis undertaken pursuant to Article 59(1)(b) of Regulation 2017/1001 include, in particular, the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought, the applicant’s intention to prevent that third party from continuing to use such a sign, the degree of legal protection enjoyed by the signs at issue, the applicant’s intention to prevent a third party from marketing a product, the origin of the contested sign and how it has been used since it was created, the commercial logic of which the filing of the application for registration of the sign as an EU trade mark forms a part, and the chronology of events relating to the filing (see judgment of 21 February 2024, Dendiki v EUIPO – D-Market (hepsiburada) , T‑172/23, not published, EU:T:2024:105, paragraph 26 and the case-law cited). Those factors are, however, only examples drawn from a number of factors that may be taken into account (see judgment of 11 March 2026, SBG v EUIPO – VF International (GEOGRAPHICAL NORWAY EXPEDITION) , T‑303/25, not published, EU:T:2026:188, paragraph 31 and the case-law cited).

19 Where EUIPO finds that the objective circumstances of the particular case which were relied on by the applicant for a declaration of invalidity may lead to the rebuttal of the presumption of good faith which the proprietor of the mark at issue enjoys when he or she files the application for registration of that mark, it is for the proprietor of that mark to provide plausible explanations regarding the objectives and commercial logic pursued by the application for registration of that mark (judgment of 21 April 2021, Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY) , T‑663/19, EU:T:2021:211, paragraph 43).

20 Indeed, the proprietor of the trade mark at issue is best placed to provide EUIPO with information regarding his or her intentions at the time of applying for registration of that mark and to provide it with evidence capable of convincing it that, in spite of the existence of objective circumstances, those intentions were legitimate (see judgment of 21 April 2021, MONOPOLY , T‑663/19, EU:T:2021:211, paragraph 44 and the case-law cited).

21 It is in the light of those considerations that the four complaints raised by the applicant in the context of its single plea in law must be examined.

The first complaint, alleging that the Board of Appeal erred in its finding regarding the proximity of the market sectors

22 In support of its first complaint, the applicant submits that the Board of Appeal erred in finding that there was a proximity between the goods covered by the marks at issue.

23 It submits, in that regard and in essence, that the Board of Appeal erred in law by taking into account the goods in respect of which the contested mark had actually been used, namely goods related to hunting, and not the goods for which it had been registered and which covered ‘a broader category of goods, not related to hunting’. The applicant infers, in essence, that the Board of Appeal did not apply the relevant criteria in its analysis of the similarity of the goods at issue, thereby vitiating its examination by an error of assessment.

24 The applicant adds that, in any event, use of earlier mark No 2 has not been demonstrated for the goods covered by the contested mark and that the goods covered by earlier mark No 1 are clearly dissimilar to the goods covered by the contested mark.

25 EUIPO and the intervener dispute the applicant’s arguments.

26 In the present case and in the first place, it should be noted that the Board of Appeal based its assessment, in essence, not on the similarity of the goods in question, but on the proximity between the market sectors to which those goods belong, as is clear from paragraphs 54 to 57 of the contested decision. The applicant’s line of argument is therefore based on a misreading of the contested decision.

27 In particular, as is apparent from paragraph 56 of the contested decision, the Board of Appeal did not rely on the goods in respect of which the contested mark had actually been used, but found that the goods in respect of which the contested mark had been registered, which were in Classes 18 and 25, included, within the meaning of the Nice Agreement, goods intended to be used for hunting. It thus noted that the taxonomy of the Nice Classification lists hunting bags in Class 18 and hunting pants, hunting shirts, hunting vests, hunting jackets, hunting boot bags, bib overalls for hunting and hunting boots in Class 25. Walking staffs, bags, umbrellas and apparel for animals, covered by the contested mark and included in Class 18, and clothing, covered by that mark and included in Class 25, may therefore include, as a broader category and in the absence of any restriction sought by the applicant at the time of registration, goods specifically intended for hunting or used for hunting, as the Board of Appeal correctly found.

28 It was only in the alternative that the Board of Appeal added, without being challenged on that point, that the proximity between the goods covered by the marks at issue was also, as is apparent from paragraphs 61 and 62 of the contested decision, ‘corroborated’ by the fact that the applicant was itself active in the hunting sector and offered on its website ‘technological goods for hunting’, such as clothes, gloves, shoes and bags explicitly designed for hunting.

29 The applicant’s claim that the Board of Appeal based its assessment on the goods for which the contested mark had actually been used rather than on the goods for which it had been registered is therefore unfounded.

30 Therefore, the applicant also cannot claim that the Board of Appeal disregarded, on that ground alone, the principle that the similarity of the goods covered by the marks at issue must be assessed on the basis of objective factors, such as the nature, purpose, distribution channels or target audience of those goods.

31 In any event, the applicant has not adduced any evidence capable of calling into question the Board of Appeal’s assessment that the goods covered by the marks at issue are aimed at the same consumers, namely hunters, may be sold in the same shops and may be purchased, at least in part, on the basis of a desire for a certain aesthetic complementarity, as the Board of Appeal pointed out, without being challenged, in paragraph 60 of the contested decision.

32 Therefore, it is necessary to reject the applicant’s argument that the goods covered by earlier mark No 1 and coming within Class 13 are clearly dissimilar to the goods covered by the contested mark.

33 In the second place, it should be borne in mind that, in the case of an application for a declaration of invalidity based on Article 59(1)(b) of Regulation 2017/1001, there is no requirement whatsoever that the applicant for that declaration be the proprietor of an earlier mark for identical or similar goods or services (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraphs 52 and 53).

34 In those circumstances, the fact that use of earlier mark No 2 has not been shown for goods ‘that could potentially be similar to the goods’ covered by the contested mark cannot, in itself, invalidate the Board of Appeal’s assessment.

35 In the light of the foregoing, none of the arguments put forward by the applicant is capable of calling into question the Board of Appeal’s finding in paragraphs 55 to 58 of the contested decision that there is proximity between the market sectors that include firearms and ammunition, covered by earlier mark No 1, and the goods covered by the contested mark, which are part of the hunting market and target the same consumers, namely hunters.

36 The first complaint must therefore be rejected.

The second complaint, alleging an error of assessment on the part of the Board of Appeal relating to the knowledge of the existence of the earlier marks

37 The applicant submits, in essence, that there is no evidence to establish that it was aware of the earlier marks at the time the application for registration of the contested mark was filed.

38 EUIPO and the intervener dispute the applicant’s arguments.

39 It should be borne in mind that a presumption of knowledge, by the applicant for registration of a sign, of the use by a third party of an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought may arise, inter alia, from general knowledge in the economic sector concerned of such use, and that knowledge can be inferred, inter alia, from the duration of such use. The more that use is long-standing, the more probable it is that the applicant will, when filing the application for registration, have knowledge of it (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli , C‑529/07, EU:C:2009:361, paragraph 39).

40 In the present case, the Board of Appeal noted in paragraph 66 of the contested decision that earlier mark No 1 had been used for more than 200 years in the United States and at least since 2008 in various Member States of the European Union. It found in paragraph 68 of that decision that both the applicant and the intervener were active in the same economic sector, namely that of hunting gear and equipment. The Board of Appeal inferred from those findings, as is apparent from paragraph 69 of the contested decision, that it had to be presumed that, on the date on which the contested mark was filed, the applicant was aware of the use of earlier mark No 1 in the economic sector related to hunting.

41 In the first place, it should be noted that the applicant does not dispute that earlier mark No 1 has been used for 200 years in the United States, or that it had also been used in the territory of the European Union for almost 10 years as at the date on which registration of the contested mark was filed.

42 Nevertheless, the applicant submits that the Board of Appeal could not take into account the use of the earlier mark at issue in the United States, arguing that its application for registration concerns an EU trade mark. Such an argument must, however, be rejected, since the Board of Appeal may take account of the use of an earlier mark outside the territory of the European Union in order to assess whether an applicant was acting in bad faith within the meaning of Article 59(1)(b) of Regulation 2017/1001 (see, to that effect, judgment of 21 February 2024, hepsiburada , T‑172/23, not published, EU:T:2024:105, paragraph 40).

43 The Board of Appeal also noted, in paragraph 39 of the contested decision, that the evidence produced by the intervener showed use of earlier mark No 1, either as a word sign or in combination with minor figurative decorations, for many years in connection with, at least, weapons and ammunition on the US market. Therefore, the applicant is also not justified in claiming that the Board of Appeal failed to specify in what form – verbal, figurative ‘or … other’ – the applicant might have become aware of it.

44 Furthermore, the sole purpose of the evidence taken into account by the Board of Appeal was, as is apparent from paragraph 66 of the contested decision, to establish the duration of use of the earlier mark in the relevant territory so as to infer, in accordance with the case-law cited in paragraph 39 above, general knowledge of the use of that trade mark in the relevant economic sector. It was therefore not the purpose of that evidence, contrary to what the applicant suggests, to demonstrate that the applicant had actually been aware of it, but solely to presume that the applicant had been aware of that trade mark at the time its application for registration was filed, the burden being on the applicant to rebut that presumption.

45 In that regard, as has been pointed out in paragraph 18 above, the factors taken into account by the case-law in the context of the global analysis undertaken pursuant to Article 59(1)(b) of Regulation 2017/1001 include the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought. It follows that, in order to establish the presumption that the applicant was aware of a third party’s use of the earlier mark within the territory of the European Union, the Board of Appeal was fully entitled to rely primarily on examples drawn from the local markets in Italy and Spain.

46 Moreover, it is apparent from paragraph 41 of the contested decision that the evidence taken into account did not concern only those two Member States, but also the Czech Republic, Greece, Germany, France and Sweden.

47 In the second place, it should be borne in mind, as is apparent from the analysis of the first complaint, that the Board of Appeal was fully entitled to conclude that the goods designated by the contested mark and the goods designated by earlier mark No 1 both cover goods which belong to the hunting market.

48 Moreover, the applicant does not dispute the Board of Appeal’s assertion – set out, in particular, in paragraphs 36 and 68 of the contested decision – that it is active in the hunting sector and sells, amongst other things, clothing for hunting, gun cleaning kits and holsters for pistols and rifles.

49 In those circumstances, and even though the intervener does not market the same goods as the applicant, the applicant cannot rely on that fact to dispute that it may be presumed to have been aware of the earlier mark at issue on the relevant economic market.

50 In the third place, it should be noted that the fact, relied on by the applicant, that the intervener filed its application for a declaration of invalidity five years after the filing of the application for registration of the contested mark has no bearing on the applicant’s knowledge of the earlier marks at the time of that filing.

51 Even assuming that, by referring to a period of five years between the date of the application for a declaration of invalidity and that of the filing of the application for registration, the applicant intended to rely on Article 61(1) of Regulation 2017/1001, it should be noted that that provision expressly provides that the limitation period which may be invoked against an applicant for a declaration of invalidity who has acquiesced, for a period of five successive years, in the use of the later trade mark which they intend to challenge, does not apply where registration of the later trade mark was applied for in bad faith.

52 The coexistence of the marks at issue on the market concerned for five years cannot therefore, in itself, preclude bad faith on the part of the applicant at the time the application for registration was filed.

53 In the light of all of the foregoing, none of the evidence put forward by the applicant in support of its second complaint is such as to call into question the presumption relied on by the Board of Appeal that the applicant must have been aware of earlier mark No 1 at the time the application for registration of the contested mark was filed.

54 The second complaint must be rejected.

The third complaint, alleging that the Board of Appeal made an error of assessment when comparing the marks at issue

55 The applicant submits, in essence, that, contrary to the Board of Appeal’s assessment, the marks at issue are neither visually similar nor phonetically identical.

56 EUIPO and the intervener dispute the applicant’s arguments.

57 In the present case, the Board of Appeal first of all found, correctly and without being challenged on that point, that earlier mark No 1 consisted of a meaningless and fanciful word which was therefore distinctive.

58 The Board of Appeal then found that that mark was entirely included in the contested mark and noted that the additional figurative elements of the contested mark were merely decorative additions. It found that the additional and very small word element ‘synergyworld’ in the contested sign was laudatory and less important in the overall impression produced by the sign, with the result that it would most likely not be pronounced by consumers due to its size and position.

59 In order to challenge such an assessment, the applicant submits, as a preliminary point, that the Board of Appeal, since it took account of the similarity of the marks at issue in order to assess whether there was bad faith, should, in essence, have applied the same criteria as those used to establish the existence of a likelihood of confusion.

60 However, it should be borne in mind that the existence of a likelihood of confusion on the part of the public need not necessarily be established in order for Article 59(1)(b) of Regulation 2017/1001 to apply (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraph 54).

61 In those circumstances, the applicant cannot reasonably claim that, for the purpose of applying Article 59(1)(b) of Regulation 2017/1001, the Board of Appeal was required to rely on the same criteria as those used to assess whether there was a likelihood of confusion between two marks.

62 That being the case, the applicant submits, in essence, that the marks at issue are neither visually similar nor phonetically identical because the contested mark includes the stylised representation of a deer’s head and the word ‘synergyworld’ written in stylised letters, whereas earlier mark No 1 is purely a word mark composed of a single word.

63 It should first be noted that, according to the case-law, where a trade mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE) , T‑312/03, EU:T:2005:289, paragraph 37; see judgment of 3 September 2025, Eti v EUIPO – Star Foods E.M. (Packaging) , T‑92/24, EU:T:2025:815, paragraph 74 and the case-law cited).

64 The applicant’s argument – which is, moreover, unsubstantiated – by which it relies on the presence of the figurative element does not, in the present case, call into question the Board of Appeal’s assessment that the word element ‘remington’ occupies a central position in the contested mark.

65 It should further be noted that the allusive character of an element composing a mark, like the descriptive or laudatory character of such an element, is capable of affecting its inherent distinctive character. The ability aimed at enabling the consumer to distinguish immediately and with certainty the goods and services covered by a mark, in so far as it contains that element, from the goods and services of other undertakings, is thus reduced in all the abovementioned situations (see judgment of 4 February 2026, Médis v EUIPO – RGCC (WelMedis) , T‑142/25, not published, EU:T:2026:70, paragraph 32 and the case-law cited).

66 In that regard, although the applicant takes the view that the word ‘synergyworld’, written in stylised letters, cannot ‘be considered clearly laudatory’, contrary to what the Board of Appeal found, it does not, however, adduce any evidence in support of its assertion.

67 In those circumstances, in the absence of any evidence capable of calling into question the Board of Appeal’s assessment, and in so far as the word ‘synergyworld’ is written in significantly smaller characters than the word element ‘remington’ and is placed below it, the Board of Appeal was fully entitled to conclude that the word ‘synergyworld’ was less important in the overall impression, so that it would most likely not be pronounced by consumers.

68 Lastly, it must be borne in mind that, according to the case-law, the fact that earlier mark No 1 is, as in the present case, entirely included in the contested mark is, by that fact alone and as a rule, liable to create both a strong visual and phonetic similarity between the marks at issue (see, to that effect, judgment of 8 June 2022, Polo Club Düsseldorf v EUIPO – Company Bridge and Life (POLO CLUB DÜSSELDORF EST. 1976 ), T‑355/21, not published, EU:T:2022:348, paragraph 45 and the case-law cited).

69 Consequently, and in view of the central position within the contested mark of the word element ‘remington’, written in bold characters and corresponding to earlier mark No 1 in its entirety, it must be held that the Board of Appeal was right to find that the marks at issue were visually similar to a very high degree and phonetically identical.

70 In that regard, the fact that the Spanish shop Ecommur distributes, as the Board of Appeal observes in paragraph 88 of the contested decision, goods under the applicant’s mark Remington SW while making reference to the intervener’s commercial history confirms that the contested sign, which also includes the word element ‘remington’, is liable to give rise to confusion with earlier mark No 1. Moreover, the applicant itself acknowledges that confusion between the marks at issue is possible, since it expressly states that that fact shows that the shop in question ‘made an error’.

71 Although, as the applicant points out, that fact alone cannot establish the existence of bad faith, it should nevertheless be noted that the Board of Appeal did not only take into account the similarity of the signs at issue in order to find that the applicant acted in bad faith, contrary to what the applicant claims. Indeed, it examined all the relevant factors, as is apparent from the analysis of the first and second complaints.

72 Furthermore, although the applicant considers that the intervener should have had recourse, in the context of the present dispute, to the proceedings provided for in Article 60(1)(a) of Regulation 2017/1001, relating to invalidity proceedings based on the existence of a likelihood of confusion with the earlier mark, it is sufficient to note, as has been stated in paragraph 4 above, that the intervener also submitted its application for a declaration of invalidity on that basis. The Board of Appeal nevertheless found in the present case, as is apparent from paragraph 100 of the contested decision, that, since the action had been upheld on the basis of Article 59(1)(b) of Regulation 2017/1001, it was not necessary for it to rule on the other ground on which that application was based.

73 In the light of all the foregoing, the third complaint must be dismissed.

The fourth and final complaint, alleging that the Board of Appeal erred in its assessment of the applicant’s intention at the time the application for registration was filed

74 The applicant submits, in essence, that the Board of Appeal erred in finding that its intention when the contested mark was filed had been to implement strategies for exploiting earlier mark No 1 which were contrary to honest commercial and business practices.

75 EUIPO and the intervener dispute the applicant’s arguments.

76 In the present case, the Board of Appeal found that the applicant’s intention, when it filed for registration of the contested mark, was to use its mark in order deliberately to give rise, in the minds of professionals or the public, to an association with the earlier marks.

77 In order to justify its assessment, the Board of Appeal found, in essence, that the evidence showed that, instead of using the contested mark exactly as it had been registered, it had used marks almost identical to those of the intervener to offer on the market not only goods related to hunting in Classes 18 and 28, covered by the contested mark, but also more specific goods, such as bags for rifles and gun cleaning kits, which are included in the same Class 13 as firearms, covered by earlier mark No 1. Such a commercial practice clearly shows that the applicant’s intention was to take advantage of the intervener’s recognition and goodwill on the hunting market in order to increase its sales figures.

78 It should be noted, first of all, that the applicant does not dispute that it used the contested mark in forms, reproduced in paragraph 75 of the contested decision, that are different from the form in which it was registered. Nor does it dispute the Board of Appeal’s assessment that those different forms are almost identical to the forms, reproduced in paragraph 76 of that decision, in which the intervener used its mark on the market. Nor does it dispute that it offered on the market products related to hunting as well as more specific products, such as those referred to by the Board of Appeal in the contested decision.

79 The applicant submits, by contrast and in essence, that the use of different variants of the registered mark or the development, after filing its registration, of new activities through the marketing of new products are lawful commercial practices.

80 It should be borne in mind, however, that the rules on the EU trade mark are aimed at contributing to the system of undistorted competition in the Union (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO , C‑104/18 P, EU:C:2019:724, paragraph 45 and the case-law cited).

81 The practices relied on by the applicant cannot therefore comply with the rules on the EU trade mark, and in particular Article 59(1)(b) of Regulation 2017/1001, where it has filed the application for registration of its mark not with the aim of engaging fairly in competition but with the intention of undermining the interests of third parties, or with the intention of obtaining an exclusive right for purposes other than those falling within the functions of a trade mark, in accordance with the case-law cited in paragraph 16 above.

82 In that regard, it must be borne in mind that, although the relevant time for the purpose of determining whether there was bad faith on the part of the applicant is the time the application for registration was filed, use of the contested mark may constitute a factor to be taken into account when establishing the intention underlying the application for registration, including use subsequent to the date of that application (see judgment of 29 June 2022, Hijos de Moisés Rodríguez González v EUIPO – Ireland and Ornua (La Irlandesa 1943) , T‑306/20, EU:T:2022:404, paragraph 81 and the case-law cited).

83 Therefore, and contrary to what the applicant claims, the Board of Appeal was entitled to take into account, in support of its assessment, evidence relating to a period subsequent to the date on which the application for registration of the contested mark was filed.

84 The applicant criticises, however, the Board of Appeal for having taken into account, in that regard, evidence concerning the use of the earlier marks in the territory of the United States and the turnover achieved by those marks outside the territory of the European Union. Nevertheless, it is not apparent from the contested decision, in particular from paragraphs 72 to 89 thereof dealing with the analysis of the applicant’s intention at the time it filed its application, that the Board of Appeal relied on such evidence in order to characterise the applicant’s intention as contrary to honest commercial and business practices.

85 Lastly, it follows from the case-law that where similarity to an earlier sign is relied on in order to establish that registration of the contested mark was applied for in bad faith, the form in which that earlier sign has been used on the market from its origin cannot be disregarded for the purposes of assessing bad faith, irrespective of whether or not that sign has been registered as a trade mark (judgment of 6 March 2024, GEOGRAPHICAL NORWAY EXPEDITION , T‑639/22, not published, EU:T:2024:149, paragraph 48).

86 In those circumstances, contrary to what the applicant contends, in essence, the Board of Appeal was entitled to take into account the use of an unprotected version of the earlier trade mark in assessing the applicant’s bad faith.

87 In the light of all the foregoing, none of the arguments put forward in support of the action is capable of calling into question the Board of Appeal’s assessment that the applicant’s intention when filing the application for registration was contrary to honest commercial and business practices.

88 The fourth complaint must be dismissed.

89 Since all the arguments relied on by the applicant have been rejected, it is necessary to confirm the Board of Appeal’s assessment, in paragraphs 96 and 99 of the contested decision, by which it found, first, that the applicant had acted in bad faith when it applied for registration of the contested mark and, secondly, and on that ground, upheld the application for a declaration of invalidity on the basis of Article 59(1)(b) of Regulation 2017/1001.

90 In the light of all of the foregoing considerations, since the single plea in law relied on by the applicant in support of its claims cannot be upheld, the action must be dismissed.

Costs

91 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

92 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as no hearing was held, be ordered to bear its own costs.

93 Lastly, although the intervener has applied for the applicant to be ordered to pay the costs incurred for the purposes of the proceedings before EUIPO, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, paragraph 3 of the operative part of that decision continues to govern the costs incurred in the opposition proceedings and in the appeal proceedings before EUIPO (see judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø) , T‑399/20, EU:T:2021:442, paragraph 64 and the case-law cited).

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1. Dismisses the action;

2. Orders Sudex OÜ to bear its own costs and to pay those incurred by Ammunition Operations LLC;

3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Delivered in open court in Luxembourg on 16 September 2026.

* Language of the case: English.