Since spring 2026, there has been a double focus on trademark applications filed in bad faith. In its “Testarossa” decision of September 11, 2025, the Federal Court of Justice clarified the conditions under which a registered trademark can be canceled due to bad faith. Shortly afterwards, the German Patent and Trade Mark Office made it public in its notice of February 11, 2026 that it is already paying more attention to this absolute ground for refusal during the registration process. Both developments together mark a noticeable change of tone in trademark law – and are interesting for any company with its own trademarks.

The “Testarossa” BGH decision – intent to cause harm and obstruction at its core

Proceedings I ZB 6/25 concerned the German word mark “Testa Rossa”, which an entrepreneur from the toy and model car industry had registered in 2013. The Italian sports car manufacturer Ferrari considered this to be an application in bad faith following its long-standing designation “Testarossa” and applied for cancellation on the basis of Section 8 (2) No. 14 MarkenG.

The First Civil Senate has sharpened the standards along three lines. Firstly, bad faith requires a specific intent to harm or obstruct on the part of the applicant at the time of filing. A reference to a specific third-party company is not mandatory – the intention can also be directed against a market or a market segment. Secondly, the mere existence of a relative ground for refusal – such as an earlier, similar trademark – is not in itself sufficient. However, the proximity to a well-known earlier sign can be one of several indications in the overall view. Thirdly, the applicant for cancellation due to bad faith must present conclusive and consistent evidence. If these are capable of rebutting the applicant’s presumption of good faith, the burden of proof shifts: the trademark owner must then disclose its motives for filing the application in a comprehensible manner and plausibly explain the economic logic behind the application.

The decision thus raises the hurdle for a bad faith cancellation, but at the same time provides attackers with a clear path. And it puts trademark owners under pressure to give reasons as soon as there are tangible indications of an improper motive.

§ 8 para. 2 No. 14 MarkenG – the trademark as an indication of origin

The background to the discussion is the function of the trademark. It is intended to distinguish the goods or services of one company from those of others – an indication of commercial origin within the meaning of trademark law. Anyone who registers a trademark without assigning it this function, but primarily in order to block, put pressure on or financially exploit competitors, is acting in bad faith according to the established case law of the ECJ and the BGH.

§ 8 para. 2 No. 14 MarkenG considers this assessment to be an absolute obstacle to protection. This is more than a formality. Unlike relative grounds for refusal, the Office examines absolute grounds for refusal ex officio. The DPMA can therefore reject an application filed in bad faith during the registration procedure without the competitor concerned filing an opposition. In EU trademark law, the same assessment can be found in Art. 59 para. 1 lit. b UMV – There, however, only as a ground for invalidity after registration, not as a preliminary examination by the EUIPO.

The DPMA notice of February 11, 2026 – AI and online platforms as drivers

The DPMA’s notice is aimed precisely at this preliminary examination. Since mid-2025, the Office has observed an increase in trade mark applications whose bona fides appear doubtful. According to the Office’s assessment, the applicants are not using the trade marks as business indications of origin, but rather inappropriately as a means of competition – for example, by registering signs that third parties are already using successfully on the market without having registered them themselves.

The DPMA names two drivers. Firstly, it is now very easy to track down unregistered trademarks on the market using artificial intelligence applications. Secondly, some online sales platforms offer owners of registered trademarks highly efficient blocking mechanisms: Anyone who registers their trademark on the platform can also have authorized third parties automatically excluded from using it. By the time those affected are able to defend themselves, attractive sales windows have often long since closed.

Before the Office rejects a trademark application on the grounds of bad faith, it gives the applicant the opportunity to comment. Honest applicants can dispel the suspicion with arguments and evidence of their intentions. The DPMA also accepts indications of activities in bad faith as so-called “third-party observations” – stating the file number concerned and without the person making the indication becoming a party to the proceedings.

What companies should learn from both developments

In practical terms, this results in four lines for your own brand strategy.

Firstly, it is worth registering yourself. Anyone who successfully uses a sign on the market should not postpone its registration. In addition to the traditional procedure, the DPMA offers the fast-track procedure for time-critical occasions, which usually allows registration within a few months.

Secondly, it makes sense to monitor the registers. DPMAregister and, in particular, the DPMA-Kurier show third-party applications relating to your own sign or variants that are likely to cause confusion. If you check it regularly or run automatic monitoring, you will learn about problematic applications at an early stage.

Thirdly, the third-party observation is an effective tool. As soon as an attempt to file an application in bad faith becomes apparent, a brief, factual notification to the Office – stating the file number and providing evidence of the applicant’s own market presence – can trigger the DPMA’s examination without formally initiating opposition proceedings. This saves resources and makes use of the preliminary examination.

Fourthly, the cancellation procedure remains after registration. The Testarossa line of the Federal Court of Justice sets the standard here: anyone who presents conclusive evidence of the trademark owner’s intention to cause damage or obstruction can shake the presumption of good faith and force the trademark owner to disclose his motives for filing the application.

Anyone who is acutely blocked on an online sales platform by a blocking trademark in bad faith should pursue both tracks in parallel: take direct action against the platform block and simultaneously initiate the trademark law proceedings – third-party comments in ongoing proceedings or an application for cancellation in the case of registered trademarks. This closes the gaps that the system otherwise leaves open to speculators.

We have described in detail elsewhere what other pitfalls companies should be aware of in trademark law.