Proof of Use in European Oppositions: What Works, What Fails

If you enforce a European trademark that is more than five years old, the other side has a weapon US counsel rarely see coming: it can demand that you prove genuine use — and if you cannot, your opposition is thrown out before the merits are ever reached. There is no discovery to lean on, no §8 declaration on file to point to, and no presumption that registration equals use. Eight decisions from the French PTO (INPI) in 2025 show, concretely, which evidence carries the day and which collapses. For the procedural frame, see our pillar on proof-of-use requests in France and at the EUIPO.

The rule: no use, no protection

Article L. 712-5-1 of the French Intellectual Property Code rejects an opposition based on a mark registered more than five years earlier when the opponent cannot show genuine use over the five years preceding the contested filing (or valid reasons for non-use). A mark sitting in a drawer cannot block a competitor’s application. This is the opposition-stage cousin of revocation for non-use, and it is the applicant’s most effective procedural counter-punch.

Two gating points trip up the unwary opponent. The request for proof of use must be made by the applicant in its first observations — clearly and unambiguously; a late or vague request is inadmissible. And the reference period is fixed to the day: in LINKY / ZE-LINK (INPI, 13 November 2025, OP 25-0863), with a contested filing dated 19 December 2024, the opponent had to prove use in France from 19 December 2019 to 19 December 2024.

The four criteria

The INPI applies the CJEU’s Ansul test (11 March 2003, C-40/01): the evidence must establish the time, place, extent and nature of use for the relevant goods and services.

• Time — within the five-year window; use need not be continuous, only present during the period.
• Place — France for a French mark; the EU for an EUTM, where use in a single member state can suffice depending on the circumstances.
• Extent — real commercial use aimed at creating or preserving a market, not token use whose only purpose is to preserve the registration. Volume need not be large, but “the more limited the commercial volume, the more the owner must supply additional indications to dispel doubts.”
• Nature — a clear link between the mark as used and the specific goods.

Point of attention

Genuine use is a fact, provable by any means — and the rule that no one may create evidence in their own favor does not apply to proving a fact. Dated internal documents (invoices, catalogs) count, provided they are corroborated.

What worked

In LINKY / ZE-LINK, ENEDIS assembled a model file for its electricity-meter mark: official reports, press releases, technical guides, press articles, user manuals, dated Wikipedia extracts. The INPI found genuine use proven and uncontested. In COGEDIM / COGEFIM (INPI, 27 October 2025, OP 25-0121), a property developer produced 24 dated press releases, Les Échos coverage, dated web publications and customer satisfaction surveys — use accepted for real-estate services, though rejected for “insurance,” where nothing specific was shown.

Practical takeaway

Diversify the sources: outside press plus dated internal documents, invoices, catalogs. A single-source file is fragile. And remember use by a subsidiary or licensee counts when it is made with the owner’s consent, which may be tacit (EU General Court, 30/01/2015, T-278/13).

What failed

Three failure modes recur.

Partial use. In ANGEL / ANGE (INPI, 28 October 2025, OP 25-0698), the opponent invoked “soy milk, vinegar, soy sauce, condiments, yeast” but proved use only for yeast. The opposition was examined for yeast alone — its scope gutted. The statute is explicit: for the opposition, the earlier mark is deemed registered only for the goods for which genuine use was proven. Prove use good-by-good, or watch the opposition shrink.

Token use. A handful of sales rarely qualifies. In the EUIPO PEPPER matter (cancellation C-12378), evidence of extent was “clearly insufficient” and the sale of a single product was not offset by other factors. Two phones sold, two candlesticks for €950 — the INPI and the Paris Court of Appeal have called these insufficient. Low volume can be rescued by duration or frequency; isolated sales usually cannot.

No response at all. In the INPI ALTEOR opposition the opponent filed nothing within the deadline, and the opposition was rejected outright — the office never reached the signs or the goods. The same trap operates in cancellation: in HU TONG PARIS / HUTONG (INPI, 23 October 2025, NL 22-0189) a nullity claimant who ignored a proof-of-use request saw its claim declared inadmissible.

Point of attention

The obligation runs both ways. An opponent must prove use of its earlier mark; a nullity claimant must too. Ignoring the request is automatic defeat for whoever brought the action.

“Valid reasons” for non-use: a narrow door

The statute offers an alternative — proving valid reasons for non-use — but the INPI reads it strictly. Under CJEU Häupl (14 June 2007, C-246/05), the obstacle must have a direct relationship with the mark, make use impossible or unreasonable, and be independent of the owner’s will. French courts add three cumulative conditions: a real intention to use, a beginning of use before the impediment, and attempts to work around it.

TECH SHOW (INPI, 7 November 2025, DC 24-0175) is the cautionary tale. The owner blamed COVID-19 for cancelled trade shows; the office refused, noting no intention or start of use before March 2020 — and that the very party seeking revocation had run an online TECHSHOW event in November 2020, proving adaptation was possible. A second excuse (fear that use would aggravate a pending fraud complaint) also failed. Total revocation, retroactive to November 2022.

For US counsel

There is no §8/§15 declaration to fall back on and no presumption of use from a live registration. If you plan to enforce an older French or EU mark, treat the evidence file as something you build before the fight (dated, diversified, good-by-good), because in Europe the burden lands on the enforcer fast, on a short and unforgiving deadline. When you are on the receiving end of an opposition, a proof-of-use request is often the highest-leverage first move; see responding to a trademark opposition and the mechanics of an INPI opposition. At the EUIPO the framework mirrors this, with its own short deadlines.

Key takeaways

• Proof of use turns on four criteria: time, place, extent, nature.
• Use must be real and commercial, not token — and proven for each good invoked.
• No response to a proof-of-use request means automatic loss, in opposition and in cancellation.
• “Valid reasons” for non-use is a narrow exception; COVID-19 alone does not qualify.

Applicable law

Art. L. 712-5-1, French Intellectual Property Code: an opposition based on a mark registered more than five years earlier is rejected unless the opponent shows genuine use of the earlier mark for the goods relied on during the five years preceding the contested filing, or valid reasons for non-use.

Decisions cited

French decisions are searchable by number on Pappers Justice.