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The General Court's recent decision in Airbnb, Inc. v. EUIPO (Case T‑94/24 and Case T‑1032/23) serves as a critical reminder that owning a trademark in the EU is not enough. To retain protection, trademark owners must prove actual i.e., consistent commercial use. The case sheds light on what the EUIPO and courts expect when assessing “genuine use” and what happens when that standard isn't met.
Understanding Non-Use / Revocation in the EU
In the European Union, proceedings for the revocation or invalidity of a registered European Union Trademark (EUTM) are collectively known as cancellation proceedings. These are initially adjudicated by the Cancellation Division of the European Union Intellectual Property Office (EUIPO).
Key regulations governing cancellation proceedings are laid out in:
- Articles 58–60, 62, and 64 of the European Union Trademark Regulation (EUTMR)
- Articles 12–20 of the European Union Trademark Delegated Regulation (EUTMDR)
Cancellation proceedings commence upon submission of an application for either revocation or a declaration of invalidity of the registered EUTM with EUIPO. Once filed, the proprietor of the trademark is notified accordingly. All relevant details and documents are made accessible through the EUIPO website.
Proving Use in Revocation/Non-Use Cancellation Proceedings
In EU trademark revocation or non-use proceedings, the burden of proof lies with the registered trademark owner. Under Article 58(1)(a) of Regulation (EU) 2017/1001, the trademark owner must demonstrate genuine use of the mark within a continuous five-year period.
- Criteria for Genuine Use
To be qualified as “genuine use”, the use of a trademark must satisfy the following:
- The mark must be used as a distinctive identifier for the goods or services for which it is registered.
- The usage must be real, substantial, and consistent, not merely symbolic or intended to preserve legal rights.
- Relevant Evidence
Evidence must be dated, linked to a specific market or geographic region and targeted to relevant audiences. To make the evidence of use relevant to the proceedings, they should be dated and referred to the places or relevant market/audience.
Commonly accepted forms of evidence include
- Sales invoices
- Product catalogues
- Promotional materials
- Records of marketing investments.
These documents should clearly show the commercial presence of the trademark. If invoices reference only article codes without the mark itself, they must be cross-referenced with dated catalogues to validate usage. Screenshots or extracts from e-commerce platforms can also be relevant, particularly when they specify product availability and are accompanied by other supporting documentation.
For digital evidence, the mere presence of the trademark on a website does not suffice. The website must indicate the scope and geographical extent of use, supplemented by data such as visitor statistics, order volumes, or company web page registers. Hyperlinks or URLs alone are not considered reliable evidence due to their mutable nature and must be reinforced with other verifiable documents.
- Geographical Scope
Genuine use in even a single part of the EU is considered valid, regardless of national boundaries. However, the EUIPO assesses various factors when evaluating genuine use, including the specific characteristics of the market, the nature of the goods or services, and the frequency and regularity of use.
CASE STUDY: AIRBNB, INC. V. EUIPO
A recent case that illustrates the standards of genuine use is Airbnb, Inc. v. EUIPO (Case T‑94/24 and Case T‑1032/23). In these joined cases, the General Court of the European Union reviewed revocation proceedings initiated by Airtasker Pty Ltd against Airbnb's EU trademark “AIRBNB”. The challenge was based on Article 58(1)(a) of Regulation (EU) 2017/1001, which requires trademark owners to demonstrate genuine use of their mark within a continuous five-year period.
Airbnb had registered the mark for a wide range of services across multiple classes, including accommodation, travel, advertising, and social networking. Airtasker argued that Airbnb had not used the mark genuinely for many of these services.
The EUIPO's Cancellation Division partially upheld the revocation, and both parties appealed. The Board of Appeal confirmed genuine use for services closely tied to Airbnb's core business such as temporary lodging and leisure activities but upheld revocation for broader services like advertising, payment processing, and cultural offerings.
On 21 May 2025, the General Court issued its judgment:
- It annulled the Board of Appeal's decision in part, allowing Airbnb to retain its trademark for specific services in Class 36, such as providing reviews and feedback about real estate listings from virtual communities and social networking sites.
- It upheld revocation for other services in Classes 35, 38, 39, 41, and 43, where Airbnb failed to provide sufficient evidence of genuine use.
- Each party was ordered to bear its own costs.
The ruling reinforces that trademark protection cannot extend to services that are not actively used in the market, and that objective, verifiable evidence is essential to maintain registration across multiple classes.
Brief Background:
Airbnb, Inc. registered the EU trademark “AIRBNB” in 2010 for various services spanning multiple classes. In 2020, Airtasker Pty Ltd initiated revocation proceedings before the EUIPO, arguing non-use of the trademark in connection with several of the registered services. The application was based on Article 58(1)(a) of Regulation (EU) 2017/1001, which requires that a registered EUTM be used genuinely within a continuous five-year period.
The EUIPO's Cancellation Division partially upheld the revocation. On appeal, the Second Board of Appeal found that Airbnb had proven genuine use for services related to temporary lodging and leisure activities, but not for other registered services.
Judgment
The General Court annulled the decision of the Board of Appeal in part, allowing Airbnb to retain trademark protection for certain services under Class 36, specifically related to providing reviews and feedback about real estate listings from virtual communities and social networking platforms.
For all other contested services across Classes 35, 38, 39, 41, and 43 the Court upheld the revocation, determining that Airbnb had not provided adequate evidence of genuine use.
The Court emphasized that the burden of proof for genuine use lies with the trademark proprietor. Use must be:
- Real and consistent within the market
- Directed at creating or maintaining market share
- Supported by verifiable, dated, and relevant documentation
Airbnb's evidence met these requirements for Class 36 services but fell short for others. The Court found that insufficient market activity had been shown for the broader range of services originally covered by the mark.
CONCLUSION
The revocation and non-use cancellation framework in the European Union is designed to ensure that EU trademarks (EUTMs) reflect authentic commercial activity. As per the EUIPO's procedures and relevant legislation, the responsibility to prove genuine use rests solely with the trademark proprietor. This use must be real, continuous, and market-oriented—not merely symbolic or maintained for the sake of legal protection.
The decision in Airbnb, Inc. v. EUIPO is a clear reminder of the stringent evidentiary standards set by the courts. While Airbnb successfully retained protection for specific services where usage was well-documented, the Court upheld revocation for a broad array of others due to insufficient supporting evidence. The judgment illustrates that survival of a trademark depends on tangible, dated, and geographically relevant proof of actual use in the EU market.
Trademark holders must, therefore, maintain comprehensive records—ranging from sales documentation to digital engagement metrics—to safeguard their registrations. The case sets a critical precedent emphasizing that only genuinely used marks in commercial practice are eligible for continued protection, ensuring a balanced system that promotes fair competition and discourages the warehousing of unused trademarks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
