Case No. IP-2021-000046

…(6)A trade mark shall not be registered if or to the extent that the application is made in bad faith.24.The requirements of bad faith for the purposes of section 3(6) TMA were set out by Arnold J (as he then was) in Red Bull GmbH v Sun Mark Ltd and Sea Air & Land Forwarding Ltd [2012] EWHC 1929 (Ch) at [130] – [138]. To summarise:i)The relevant date for assessing whether an application to register a trade mark was made in bad faith is the application date, although later evidence is relevant if it casts light backwards on the position as at the application date;ii)A person is presumed to have acted in good faith unless the contrary is proved on the balance of probabilities. Cogent evidence is required due to the seriousness of the allegation: it is not enough to prove facts which are also consistent with good faith;iii)Bad faith includes not only dishonesty but also dealings which fall short of the standards of acceptable commercial behaviour observed by a reasonable person experienced in the particular area being examined;iv)The court must make an overall assessment when determining whether a party acted in bad faith, taking into account all the factors relevant to the case;v)The court must first ascertain what the applicant knew about the matters in question and then decide whether, in the light of that knowledge, the applicant’s conduct is dishonest, or otherwise falls short of the standards of acceptable commercial behaviour, judged by the ordinary standards of honest people. vi)Consideration must be given to the applicant’s intention at the time he files the application for registration. This is a subjective factor which must be determined by reference to the objective circumstances of the particular case. 25.Invalidity is also challenged on section 47(2) / section 5 TMA grounds. Section 5 provides, so far as is relevant: 5.