Bad faith in UK trade mark applications

What bad faith means in trade mark law

Bad faith is a ground for refusing registration under section 3(6) of the Trade Marks Act 1994, and a ground for invalidation under section 47. It is also available as a ground for opposition. Despite its importance, it remains one of the more fact-sensitive and contested areas of UK trade mark law.

At its core, bad faith asks whether the applicant’s behaviour at the time of filing fell short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in the particular area being examined. That formulation comes from the leading case law and has been consistently applied by the UKIPO and the courts.

The assessment is not about whether the applicant’s behaviour seems unattractive in hindsight. It requires a credible factual story about what the applicant knew, intended, or should have known at the time they filed.

Common signals of bad faith

Several patterns recur in successful bad faith challenges. None of these is conclusive on its own, but each can contribute to a credible case:

Broad specifications without clear commercial logic. An applicant who files for an extensive list of goods and services with no apparent intention to use the mark across that range may be padding the specification to create blocking power rather than to protect genuine commercial activity.

Repeat filing or evergreening patterns. Filing the same or substantially similar mark repeatedly, particularly where earlier applications have lapsed for non-use, can suggest an attempt to avoid the five-year use requirement by refreshing the filing date.

Filing in breach of a prior agreement. Where parties have entered into a coexistence agreement or settlement, a subsequent filing that contradicts the terms of that agreement is a strong indicator of bad faith.

Knowledge of an earlier right combined with suspicious filing. If the applicant demonstrably knew about an earlier right and filed a mark that copies or targets it, this can support bad faith. The knowledge element is often inferred from the commercial context, such as a former business relationship, shared industry, or geographical proximity.

Copying or targeting patterns. Filing a mark that closely mirrors an existing brand, particularly where the applicant has no independent reason for choosing that name or device, can indicate deliberate targeting.

Blocking or defensive filing without legitimate purpose. Filing marks not to use them but to prevent others from using them, where the applicant has no genuine commercial interest in the mark, may constitute bad faith.

How bad faith interacts with other grounds

Bad faith is often pleaded alongside confusion-based grounds under section 5(2). The two routes serve different purposes. Section 5(2) asks whether there is a likelihood of confusion between the marks. Bad faith asks whether the applicant’s conduct in filing was dishonest or fell below acceptable standards.

In some cases, the bad faith route is actually stronger than the confusion route. This is particularly true where the marks are not identical and the goods overlap is arguable, but the filing story is clearly suspicious. A weak confusion case can be strengthened significantly when combined with a compelling bad faith narrative.

Bad faith can also be the cleanest route when the earlier right faces proof-of-use difficulties. Because bad faith is an absolute ground, it does not require the opponent to demonstrate use of their own mark in the same way that a relative ground under section 5 does.

Why systematic screening matters

Bad faith is underused in trade mark practice, partly because it requires factual investigation that goes beyond comparing the marks and the specifications. You need to understand the applicant’s filing history, their commercial context, and any prior relationship between the parties.

This is why Markscope screens for bad faith signals routinely and separately from confusion analysis. The screening layer looks for the patterns listed above: broad specifications without commercial logic, repeat filing patterns, and knowledge indicators. When signals are detected, they are flagged in the intelligence pack with an assessment of whether the bad faith route is worth considering as a lead ground or an alternative ground.

The pack does not conclude that bad faith has occurred. That remains a judgement for the instructing solicitor. But it ensures that the route is considered from the outset rather than discovered later in the process, after deadlines have narrowed the available options.

The strategic value

For rights holders and their advisers, systematic bad faith screening adds a dimension that traditional watching services do not provide. A watching service will tell you a similar mark has been filed. It will not tell you whether the filing pattern is suspicious, whether the specification is implausibly broad, or whether the applicant has a history of filings that suggest blocking behaviour.

That additional context can change the entire approach to a dispute. Instead of relying solely on a confusion argument that may be marginal, the adviser can build a case that includes the applicant’s conduct. In trade mark opposition proceedings, that combination is often more persuasive than either ground on its own.