CJEU Tightens the Territory Test for EUTM Use Online
On 30 June, the Court of Justice of the European Union (CJEU) drew a sharper line around what counts as genuine use of an EU trade mark in the platform economy. The dispute came out of long-running revocation proceedings and focused on a point many brand owners have quietly leaned on for years: if products remain listed on cross-border marketplaces, the store page can be reached from across the Union, and a handful of EU orders do come through, is that enough to resist a non-use attack against an EUTM?
The Court’s message is uncomfortable, but clear. Pan-EU accessibility is not the same thing as genuine use in the Union. What still matters is whether the online activity actually creates or preserves a commercial presence in the relevant market. If real sales remain sparse, occasional and confined to a very small Member State market, the proprietor may struggle to justify keeping a right that covers the whole EU. That is a more demanding message than many online-first businesses have been working with.
The Court is not attacking online sales. It is attacking lazy assumptions about them
For years, many trade mark owners have bundled together screenshots, live product pages, platform listings, a few invoices and some shipping records, then treated that package as if it automatically proved genuine use across the Union. That approach was always vulnerable, but platform commerce made it easy to believe it might be enough. A shop can be visible in many Member States without the business truly operating in them in any meaningful commercial sense.
The ruling pushes back against that shortcut. Genuine use is not about whether consumers in the Union could in theory click on an offer. It is about whether the mark is actually being used to build or maintain a market position. In a digital environment, that distinction matters more, not less. Platform architecture naturally creates cross-border visibility. The law is now reminding businesses that visibility is not the same as market penetration.
Use in one Member State is still possible in principle, but tiny and incidental trade is harder to rely on
The judgment should not be read as saying that an EUTM must always be used in several Member States at once. That has never been the rule. EU trade mark law has long accepted that, depending on the goods or services and the structure of the market, use in a single Member State may be enough. But many proprietors have taken that principle much further than it can safely go.
The problem is not the number of Member States on paper. The problem is whether the activity in question has genuine commercial weight. If transactions are rare, low-value and effectively trapped in a micro-market, the Court appears less willing to treat them as sufficient support for an EU-wide exclusive right. The distinction is subtle but important: one real market can be enough; a few thin traces dressed up as a market may not be.
Evidence strategy now has to move from “listing proof” to “market proof”
This is where the ruling will bite in practice. Platform sellers facing revocation pressure can no longer assume that store screenshots and a modest bundle of sales records will do most of the heavy lifting. Those materials still matter, but they look weaker when they are not tied to a broader picture of actual commercial organisation in the Union.
Stronger files will need to show continuity, not just existence: recurring orders over time, meaningful turnover patterns, advertising directed at EU consumers, local-language pages, delivery and returns arrangements, warehousing or distribution logic, customer reviews, repeat purchasing, platform campaign participation and a more concrete explanation of which Member States were being actively worked as markets. In other words, brand owners will need to prove not only that the sign appeared online, but that the business behind it was genuinely present in the market.
EUTM filing strategy may become less automatic for platform-led brands
The commercial lesson is broader than revocation procedure. Many newer brands have treated the EUTM as the obvious first filing because it is efficient, broad and administratively attractive. That logic still holds for businesses with real, multi-market traction. It looks less comfortable for brands that are still testing demand, relying heavily on marketplace traffic or generating only thin sales concentrated in a very small part of the Union.
For those businesses, this ruling is a reminder that the EUTM is not a one-size-fits-all bucket for future growth. A more layered strategy may return to the table: national filings in priority markets, staged expansion, and a more realistic match between where the business actually trades and the scope of the rights it is trying to defend. The Court is not rejecting online commerce, and it is not punishing small brands. It is simply asking a harder question than before: if you want to preserve a unitary right covering the whole Union, can you show commercial use that looks meaningfully bigger than a page that happened to be reachable across it?
