JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

3 June 2026 (*)

( EU trade mark – Invalidity proceedings – EU figurative mark BLACK – Bad faith – Article 59(1)(b) of Regulation (EU) 2017/1001 )

In Case T-284/25,

Amber Latvijas balzams AS, established in Riga (Latvia), represented by B. Wojtkowska, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by T. Klee and V. Ruzek, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Foodcare sp. z o.o., established in Zabierzów (Poland), represented by M. Bac-Matuszewska, lawyer,

THE GENERAL COURT (Seventh Chamber),

composed of K. Kecsmár, President, L. Madise and L. Truchot (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 18 March 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Amber Latvijas balzams AS, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 March 2025 (Case R 824/2024-1) (‘the contested decision’).

Background to the dispute

2 On 9 February 2023, the applicant filed with EUIPO an application for a declaration of invalidity in respect of the EU trade mark which had been registered following an application filed on 29 July 2019 by the intervener, Foodcare sp. z o.o., in respect of the following figurative sign:

3 The goods covered by the contested mark in respect of which a declaration of invalidity was sought were, inter alia, in Class 33 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded to the following description: ‘Spirits [beverages]; low alcoholic drinks; alcopops; alcoholic drinks (excluding beer); cocktails; aperitifs; fruit based alcoholic beverages; vodka; liqueurs; tinctures; wine, spirits and liqueurs to aid digestion; mead [hydromel]’ (together, ‘alcoholic beverages’).

4 The ground relied on in support of the application for a declaration of invalidity was that set out in Article 59(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), namely that the intervener was acting in bad faith when it filed the application for registration of the contested mark as an EU trade mark in respect of, inter alia, the alcoholic beverages referred to in paragraph 3 above.

5 On 19 February 2024, the Cancellation Division rejected the application for a declaration of invalidity in its entirety, on the ground that it had not been established that the intervener was acting in bad faith when it filed the application for registration of the contested mark as an EU trade mark.

6 On 18 April 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

7 By the contested decision, the Board of Appeal dismissed the applicant’s appeal. In the light of the chronology of events and all the evidence submitted by the parties, it found that the Cancellation Division was correct in concluding that the applicant had not established that the intervener was acting in bad faith when it filed the application for registration of the contested mark.

Forms of order sought

8 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO to pay the costs.

9 EUIPO contends that the Court should:

– dismiss the action in its entirety;

– order the applicant to pay the costs incurred in the event that an oral hearing is convened.

10 The intervener contends that the Court should:

– dismiss the action in its entirety;

– order the applicant to pay the costs.

Law

11 The applicant raises a single plea in law, alleging infringement of Article 59(1)(b) of Regulation 2017/1001. That single plea in law consists of seven parts.

12 First, the applicant argues that the Board of Appeal misinterpreted the concept of ‘bad faith’.

13 Secondly, in its view, the Board of Appeal incorrectly assessed the facts presented by the applicant in order to establish that the intervener did not have any intention of using the contested mark for, inter alia, alcoholic beverages.

14 Thirdly, the Board of Appeal did not correctly assess the actions of the intervener consisting in removing activities linked to the production and sale of alcoholic beverages from the Polish business register shortly before filing the application for registration of the contested mark.

15 Fourthly, the Board of Appeal incorrectly ruled out that the restrictions laid down by Polish and EU legislation concerning the advertising and promotion of alcoholic beverages might prevent the intervener, which carries out its commercial activity in the non-alcoholic beverages sector, from extending that activity into the alcoholic beverages sector and, accordingly, that those restrictions could establish that the intervener did not have any intention of using the contested mark for alcoholic beverages.

16 Fifthly, the Board of Appeal erred in not finding that it was necessary, in the present case, to apply the principle of the unitary character of the EU trade mark according to which the existence of bad faith, on account of the lack of any intention to use the mark at issue in part of the European Union, or even in a single Member State, constitutes a sufficient ground for declaring it invalid.

17 Sixthly, according to the applicant, the Board of Appeal did not take market practices into account. Undertakings carrying on their commercial activity in the alcoholic beverages sector, it argues, could have extended their activity into the non-alcoholic beverages sector. By contrast, for undertakings carrying on their commercial activity in the non-alcoholic beverages sector, the practice of extending their activity into the alcoholic beverages sector does not exist on the market.

18 Seventhly, the Board of Appeal incorrectly based the contested decision on the finding of similarity between non-alcoholic beverages and alcoholic beverages capable of explaining the intervener’s interest in registering the contested mark in respect of, inter alia, alcoholic beverages.

19 EUIPO and the intervener dispute the single plea in law and the arguments put forward by the applicant.

20 Article 59(1)(b) of Regulation 2017/1001 stipulates that an EU trade mark is to be declared invalid on application to EUIPO where the applicant was acting in bad faith when it filed the application for registration of that mark.

21 The principles which must be applied in order to ascertain whether the applicant for registration of an EU trade mark was acting in bad faith when it filed that application are as follows.

22 In the first place, in accordance with its usual meaning in everyday language, the concept of ‘bad faith’ presupposes the presence of a dishonest state of mind or intention (judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C-104/18 P, EU:C:2019:724, paragraph 45, and of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 74).

23 The concept of ‘bad faith’ must, moreover, be understood in the context of trade mark law, which is that of the course of trade. In that regard, the rules on the EU trade mark are aimed, in particular, at contributing to the system of undistorted competition in the European Union, in which each undertaking must, in order to attract and retain customers by the quality of its goods or services, be able to have registered as trade marks signs which enable the consumer, without any possibility of confusion, to distinguish those goods or services from others which have a different origin (judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C-104/18 P, EU:C:2019:724, paragraph 45, and of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 74).

24 Consequently, the absolute ground for invalidity referred to in Article 59(1)(b) of Regulation 2017/1001 applies where it is apparent from relevant and consistent indicia that the proprietor of an EU trade mark has filed the application for registration of that mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin (judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C-104/18 P, EU:C:2019:724, paragraph 46, and of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 75).

25 In the second place, the intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative or judicial authorities. Consequently, any claim of bad faith must be the subject of an overall assessment, taking into account all the factual circumstances relevant to the particular case. It is only in that manner that that claim can be assessed objectively (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C-104/18 P, EU:C:2019:724, paragraph 47 and the case-law cited).

26 In the context of the overall analysis undertaken pursuant to Article 59(1)(b) of Regulation 2017/1001, account may also be taken of the origin of the contested sign and its use since its creation, the commercial logic underlying the filing of the application for registration of that sign as an EU trade mark, and the chronology of events leading up to that filing (see judgment of 7 July 2016, Copernicus-Trademarks v EUIPO – Maquet (LUCEO), T-82/14, EU:T:2016:396, paragraph 32 and the case-law cited).

27 In the third place, the applicant for a trade mark is not required to indicate or even to know precisely, on the date on which its application for registration of a mark is filed or of the examination of that application, the use it will make of the mark applied for, and it has a period of five years for beginning actual use consistent with the essential function of that trade mark (see judgment of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 76 and the case-law cited).

28 However, the registration of a trade mark by an applicant without any intention to use it in relation to the goods and services covered by that registration may constitute bad faith, where there is no rationale for the application for registration in the light of the aims referred to in, inter alia, Regulation 2017/1001 (see, to that effect, judgment of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 77 and the case-law cited).

29 In the fourth place, the bad faith of the trade mark applicant cannot be presumed on the basis of the mere finding that, at the time of filing its application, that applicant had no economic activity corresponding to the goods and services referred to in that application (see judgment of 29 January 2020, Sky and Others, C-371/18, EU:C:2020:45, paragraph 78).

30 It is for the applicant for a declaration of invalidity to prove the circumstances which substantiate a finding that an EU trade mark proprietor was acting in bad faith when it filed the application for registration of that mark, good faith being presumed until proven otherwise (see judgment of 6 November 2024, ChiCom Marketing v EUIPO – China Faw Group (Hongqi), T-533/23, not published, EU:T:2024:786, paragraph 26 and the case-law cited).

31 It is in the light of the foregoing considerations that it is necessary to examine, in succession, the third, fourth, fifth, sixth and seventh parts of the single plea in law, then the second part of that plea and, lastly, the first part of that plea.

The third part, alleging an incorrect assessment of the measures taken by the intervener shortly before filing the application for registration of the contested mark

32 The applicant states that, shortly before filing the application for the contested mark for, inter alia, alcoholic beverages, the intervener had removed the commercial activities of producing and selling alcoholic beverages from the Polish business register. It submits that that decision and the date on which it was taken, examined together with other circumstances, establish that the intervener did not have any intention of using that mark for marketing alcoholic beverages and, therefore, that it was acting in bad faith when it filed the application for registration of the contested mark for, inter alia, alcoholic beverages.

33 In its view, the Board of Appeal was incorrect to find that the actions of the intervener were explained by the requirement, invoked by the intervener, to respect the conditions laid down by Polish legislation and accordingly limit the number of activities listed in the Polish business register to 10 by referring only to activities currently being carried on. In that regard, it argues, the removal from that register of only the activities linked to alcoholic beverages represents, rather, a deliberate choice on the part of the intervener. Indeed, according to the applicant, the intervener did not remove from that register all of the activities which it was not carrying on, such as, for example, the production of basic pharmaceutical substances.

34 Furthermore, the applicant notes that the intervener did not, either in the course of the proceedings before EUIPO or thereafter, amend the activities listed in the Polish business register to include the activities linked to the marketing of alcoholic beverages.

35 It adds that the intervener has three other marks registered for alcoholic beverages (with additional word and figurative elements), but does not use them to market those beverages.

36 Lastly, the applicant submits that, in its observations of 20 April 2023 before EUIPO, the intervener even admitted that it did not intend to use the contested mark for alcoholic beverages.

37 In the present case, it is not disputed that, on 16 July 2019, the intervener requested the removal, from the Polish business register, of its activities of producing and selling alcoholic beverages which were listed therein. In addition, on 29 July 2019, it filed an application for registration of the contested mark for, inter alia, alcoholic beverages.

38 It is also not disputed that the national legislation concerning the Polish business register was amended on 26 June 2014 and that that amendment laid down a requirement for every undertaking to list, in that register, a maximum of 10 activities. The time limit set for meeting that requirement expired on 1 December 2019.

39 First, the intervener submitted, before EUIPO, that its request for removal of its activities of producing and selling alcoholic beverages from the Polish business register was explained by the requirement which obliged it to meet the conditions laid down by the latest version of the Polish legislation. It also explained that the date of its request was linked to the fact that the time limit for complying with that legislation was about to expire. In addition, it stated that a recommendation from the government requested that the companies concerned continue to list, in the Polish business register, activities currently being carried on, in order to reflect the present situation of those undertakings on the market. Lastly, it added that the fact that the activities of producing and selling alcoholic beverages had initially been listed in that register showed that it had always intended to extend its activities into the alcoholic beverages sector.

40 It must be found that, in the light of both the amendment of the Polish legislation relating to the number of activities which can be listed in the Polish business register and the government’s recommendations to continue listing activities currently being carried on, neither the intervener’s request for removal of its activities of producing and selling alcoholic beverages nor the date on which that request was submitted can be regarded as evidence that it did not have any intention of using the contested mark to market alcoholic beverages, as the Board of Appeal found in paragraphs 23 to 27 of the contested decision.

41 Secondly, the fact that the intervener may have continued to list, in the Polish business register, the activity of producing basic pharmaceutical substances – an activity which it does not appear to carry on – cannot call into question the assessment carried out in paragraph 40 above.

42 It should be noted that, before the Court, the intervener reiterated the claim which it had already made in its observations of 13 August 2024 before EUIPO that the fact that it continued to list, in the Polish business register, the activity of producing basic pharmaceutical substances was explained by the fact that it was active in the dietary supplement sector since it offered on the market, under other marks, beverages enriched with magnesium and vitamins A, C, B and E, which are perceived as dietary supplements. However, the applicant does not establish that the intervener was not carrying out the activity of producing basic pharmaceutical substances on the date of its request for modification of the activities listed in the Polish business register or that the intervener’s claim – presented before both EUIPO and the Court – was incorrect.

43 Furthermore, the activities listed in the Polish business register can be altered at any time and the filing of an application for registration of an EU trade mark in respect of goods or services cannot be subject to the existence of a preliminary listing, in that register, of a commercial activity linked to the goods or services in question.

44 Thirdly, the fact that the activities of producing and selling alcoholic beverages had previously been listed, by the intervener, in the Polish business register undermines the applicant’s argument that the application for registration of the contested mark for those beverages was made by the intervener without any intention of covering that area of activity.

45 Fourthly, as regards the applicant’s claim that the intervener had, in its observations submitted on 20 April 2023 before EUIPO, acknowledged that it did not intend to use the contested mark for alcoholic beverages, it must be found that such a claim results from an incorrect reading of those observations. It is apparent from those observations that the intervener explained that extending its activity into the alcoholic beverages sector would have represented a natural continuation of the activity it had established in the non-alcoholic energy drinks sector. According to the intervener, such an extension was explained by the proximity of the markets for those beverages which, moreover, were often consumed together in specific contexts, such as nightlife events.

46 Accordingly, it does not follow from the intervener’s observations of 20 April 2023 before EUIPO that it had expressed a lack of any intention on its part to use the contested mark to market alcoholic beverages.

47 Fifthly, as regards the applicant’s argument that the intervener has three other marks registered for alcoholic beverages, with additional word and figurative elements, which it does not use, it must be found, as the applicant confirmed in response to a question which was put to it during the hearing, that that argument was not raised before the Board of Appeal. The Court cannot therefore, in the context of a review of the lawfulness of the contested decision, rule on an assessment of fact which was not discussed during the administrative proceedings (see, to that effect, judgment of 22 January 2025, Tecom Master v EUIPO – Michael Kors (Switzerland) International (MK MICHAEL MICHELE), T-1053/23, not published, EU:T:2025:53, paragraph 129 and the case-law cited). In any event, the existence of several marks registered for alcoholic beverages is an element which runs counter to the argument seeking to establish a lack of any intention on the part of the intervener to cover the area of activity relating to alcoholic beverages.

48 In the light of the foregoing considerations, it must be found that the Board of Appeal was correct to find, as is apparent from paragraphs 23 to 27 of the contested decision, that the intervener’s request for removal of the listing of the activities of producing and selling alcoholic beverages from the Polish business register, shortly before the application for registration of the contested mark, does not constitute evidence capable of establishing a lack of intention on its part to use that mark for alcoholic beverages, or, a fortiori, evidence of bad faith on its part when it filed that application for registration.

49 It follows that the third part of the single plea in law must be rejected as unfounded.

The fourth part, alleging an incorrect assessment of the legal prohibitions and restrictions, both in Poland and in the territory of the European Union, which prevent the extension of the use of a mark already registered for non-alcoholic beverages to alcoholic beverages

50 The applicant submits that the restrictions laid down by the Polish legislation concerning the advertising or promotion of alcoholic beverages prevent the contested mark from being used for those beverages. In its view, use of the contested mark in Poland for such beverages would be liable to criminal prosecution and such use in another Member State would constitute an attempt to circumvent Polish law. It argues that the only possibility for the intervener of using the contested mark for alcoholic beverages is to cease all activity of selling and promoting non-alcoholic beverages under the existing mark, BLACK, which would run counter to commercial logic and would make its success in the non-alcoholic beverages sector futile.

51 According to the applicant, the Board of Appeal had to recognise that the alleged legislative restrictions constituted evidence of a lack of any intention on the part of the intervener to use the contested mark for alcoholic beverages and, accordingly, evidence of bad faith on its part when it filed the application for registration of that mark.

52 Moreover, to accept that the intervener could freely extend the usage of its mark – BLACK – to alcoholic beverages outside of Poland would mean not taking into account either the restrictions laid down by Polish and EU legislation, or the Polish origin of the intervener, its mark and the goods covered.

53 In addition, irrespective of the Polish legislation, the advertising and promotion of alcoholic beverages is subject to restrictions in several Member States, on account of the harmful effects consuming alcohol has on health. Accordingly, the Board of Appeal was incorrect to rely on the intervener’s statements that it could freely extend the range of goods covered by the BLACK trade mark to include alcoholic beverages in any territory it chose.

54 In the applicant’s opinion, the Board of Appeal should, instead, have found that the intervener knew that using its BLACK trade mark to designate alcoholic beverages and non-alcoholic beverages at the same time was impossible and should therefore have found that the application for registration of that mark in respect of, inter alia, alcoholic beverages had been filed in bad faith.

55 In the first place, it is not disputed that, under Polish legislation, the advertising and promotion of alcoholic beverages are prohibited, except as regards beer, across all Polish territory and that the advertising and promotion of goods or services whose name, trade mark, graphic design or packaging bears a resemblance to, or is identical to, the designation of an alcoholic beverage or any other symbol objectively referring to an alcoholic beverage are also prohibited.

56 In the second place, it is also not disputed that EU trade mark legislation does not prohibit the registration of a mark to cover, in parallel, goods in Class 32 (non-alcoholic beverages) and goods in Class 33 (alcoholic beverages). Moreover, the applicant does not rely on any rule of EU law from which it follows that such a prohibition exists.

57 In the third place, it must be found, as EUIPO did, that it is apparent from the case-law that the EU trade mark regime is an autonomous system which applies independently of any national system (judgment of 11 December 2024, Blue Underwriting Agency v EUIPO – Blue Assistance (blue is underwriting), T-447/23, not published, EU:T:2024:894, paragraph 66).

58 In the present case, first of all, it must be observed that it is not ruled out that, under the Polish legislation referred to in paragraph 55 above, the intervener could face legal obstacles if it intended to market, in Poland and at the same time, both non-alcoholic beverages under the BLACK trade mark – the advertising of which is not restricted – and alcoholic beverages under the contested mark, on the ground that the latter would benefit from advertising which, though indirect, is still prohibited.

59 Next, it should be noted that, when questioned during the hearing, the applicant confirmed that it did not submit that either the prohibitions or restrictions laid down by the Polish legislation existed in all EU Member States.

60 On that subject, as the Board of Appeal found in paragraphs 28, 29 and 36 of the contested decision, it must be found that, even if the intervener were prohibited from using the contested mark for alcoholic beverages in Poland, it would still be entitled to use it outside of that country in a Member State whose legislation did not contain a comparable prohibition. As the Board of Appeal stated in paragraph 36 of that decision, the intervener may develop a marketing strategy allowing it to use the contested mark for alcoholic beverages in Member States other than Poland, either directly or indirectly through a licensee, all while complying with the legislation concerning the advertising and promotion of alcoholic beverages to which all companies are subject.

61 Accordingly, the applicant cannot claim that the use of the contested mark to designate alcoholic beverages outside of Poland would, without being unlawful, constitute an attempt to circumvent Polish law.

62 It must therefore be found that the Board of Appeal did not make an error of assessment when it ruled out that the restrictions laid down by the Polish legislation concerning the advertising and promotion of alcoholic beverages could constitute evidence of bad faith on the part of the intervener when the latter filed the application for registration of the contested mark in respect of, inter alia, alcoholic beverages.

63 The fourth part of the single plea in law must therefore be rejected as unfounded.

The fifth part, alleging breach of the principle of the unitary character of the EU trade mark

64 According to the applicant, the Board of Appeal erred by not accepting its argument that the finding of bad faith on the part of the applicant for registration of an EU trade mark, because of the lack of any intention to use that mark in part of the territory of the European Union, constituted a sufficient ground to declare that mark invalid. In that regard, it refers to the judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO (C-104/18 P, EU:C:2019:724), according to which bad faith can be established ‘on the basis of a specific economic or market situation, which may include operations in a single Member State’. It argues that the situation of the intervener in the present case is such a situation and that the Board of Appeal was wrong not to examine that point.

65 By the fifth part of the single plea in law, the applicant submits, in essence, that the existence of a factual and legal situation which makes it impossible to use an EU trade mark in a Member State, on account of bad faith on the part of the applicant for registration of that mark, is comparable to the existence of an absolute ground for refusal in part of the European Union.

66 It must be recalled that, as regards the principle of the unitary character of the EU trade mark, recital 4 of Regulation 2017/1001 states:

‘For the purpose of pursuing the Union’s said objectives it would appear necessary to provide for [EU] arrangements for trade marks whereby undertakings can by means of one procedural system obtain EU trade marks to which uniform protection is given and which produce their effects throughout the entire area of the Union. The principle of the unitary character of the EU trade mark thus stated should apply unless otherwise provided for in this Regulation.’

67 In addition, Article 1(2) of Regulation 2017/1001 provides:

‘An EU trade mark shall have a unitary character. It shall have equal effect throughout the Union: it shall not be registered, transferred or surrendered or be the subject of a decision revoking the rights of the proprietor or declaring it invalid, nor shall its use be prohibited, save in respect of the whole [European] Union. This principle shall apply unless otherwise provided for in this Regulation.’

68 Therefore, in accordance with Article 1(2) of Regulation 2017/1001, read in conjunction with recital 4 thereof, the unitary character of an EU trade mark is expressed solely by the fact that it enjoys uniform protection and has equal effect throughout the entire European Union (judgment of 7 May 2025, RTL Group Markenverwaltung v EUIPO – Örtl (RTL), T-1088/23, EU:T:2025:446, paragraph 97).

69 According to the case-law, it follows from the principle of the unitary character of the EU trade mark that the EU trade mark regime is an autonomous legal system which pursues objectives peculiar to it and that it applies independently of any national system. Consequently, the registrability of a sign as an EU trade mark must be assessed by reference only to the relevant EU rules (see judgment of 21 May 2008, Enercon v OHIM (E), T-329/06, not published, EU:T:2008:161, paragraph 38 and the case-law cited).

70 In paragraph 30 of the contested decision, the Board of Appeal stated that the unitary character of the EU trade mark implies, inter alia, that the existence of an absolute ground for refusal, such as the lack of distinctive character of a mark in a part of the European Union, prevents its registration in the whole of the European Union. It added that such a situation must not be conflated with a situation in which it is legally difficult, if not impossible, for the proprietor of an EU trade mark, to market certain goods in an EU Member State. It also found that the intervener was free to market and sell alcoholic beverages in EU Member States other than Poland and could therefore meet the requirement of proof of genuine use of the contested mark in accordance with Article 18 of Regulation 2017/1001, irrespective of the restrictions laid down by Polish legislation relating to the marketing of alcoholic beverages under the contested mark.

71 In that regard, the Board of Appeal did not err in finding that the principle of the unitary character of the EU trade mark did not apply in the present case.

72 The prohibitions laid down by the Polish legislation as regards the promotion and advertising of alcoholic beverages were relied on by the applicant as possible evidence of bad faith on the part of the intervener. However, as has been stated in paragraphs 60 to 62 above, the Board of Appeal was correct to rule out that those prohibitions constituted evidence of bad faith on the part of the intervener. Accordingly, those prohibitions cannot indicate the existence of an absolute ground for refusal for registration based on bad faith on the part of the intervener when it filed the application for registration of the contested mark, or any other ground expressly provided for by EU legislation for refusing registration of a sign as an EU trade mark.

73 It follows that the Board of Appeal was correct to find that the applicant erred in relying on a breach of the principle of the unitary character of the EU trade mark.

74 The fifth part of the single plea in law must therefore be rejected as unfounded.

The sixth part, alleging erroneous references to non-existent market practices

75 The applicant submits that it neither possible nor commonplace for a company which carries out its commercial activities in the non-alcoholic beverages sector to expand its activity into the alcoholic beverages sector under the same mark. It argues that neither the Board of Appeal nor the intervener referred to existing examples on the market of an undertaking which, already being active in the non-alcoholic beverages sector, had extended its activity into the alcoholic beverages sector. According to the applicant, the two sectors differ on account of, inter alia, their respective technologies, production lines and distribution channels. In addition, the prohibition on advertising non-alcoholic and alcoholic beverages in parallel eliminates any possibility of marketing of such beverages simultaneously under the same mark.

76 First, it must be noted that the question whether it is commonplace for a commercial activity established in the non-alcoholic beverages sector to be extend into the alcoholic drinks sector is irrelevant for the purpose of ascertaining whether that practice is lawful, since neither the existence nor the extent of such a practice is capable of proving or disproving its compliance with the applicable law.

77 Secondly, the differences alleged by the applicant between the market for alcoholic beverages and the market for non-alcoholic beverages, and the legislative restrictions relating to the promotion of alcoholic beverages, do not deprive a company of its right to register a mark in respect of both non-alcoholic and alcoholic beverages.

78 Thirdly, in paragraph 31 of the contested decision, the Board of Appeal only noted, on the one hand, that energy drinks containing alcohol existed which were comparable to energy drinks without alcohol and that energy drinks could be complementary to alcohol consumption. It found, on the other hand, that it was for the undertaking concerned to decide whether or not to extend its commercial activities into the alcoholic beverages sector and added that such a choice was not illogical if that undertaking was already carrying on its commercial activity in the non-alcoholic beverages sector and, in particular, the energy drinks sector.

79 The Board of Appeal, in essence, found that existing market practices did not establish bad faith on the part of the intervener.

80 In the light of the foregoing, it must be found that the applicant is incorrect to submit that the Board of Appeal based its decision on non-existent market practices.

81 The sixth part of the single plea in law must therefore be rejected as unfounded.

The seventh part, alleging erroneous references to the similarity between non-alcoholic beverages and alcoholic beverages

82 The applicant criticises the Board of Appeal for accepting the possibility of extending the contested mark into the alcoholic beverages sector based solely on an alleged similarity between non-alcoholic energy drinks and alcoholic energy drinks. In so doing, the Board of Appeal, according to the applicant, failed to take into account the specific factual and legal circumstances of the present case. It argues that those circumstances should have led the Board of Appeal to find that an undertaking active for many years in the non-alcoholic beverages sector, not only in Poland but also in other EU markets, could not begin to offer alcoholic beverages under the same mark. Such action would, according to the applicant, be contrary to the policy of taking measures to combat alcoholism. Lastly, in its view, the intervener’s explanations that the registration of the mark BLACK for alcoholic beverages is justified on account of the similarity between energy drinks, which are already marketed under that trade mark, and alcoholic beverages confirm that it did not intend to use the contested mark for alcoholic beverages.

83 First of all, it must be observed that, in the seventh part of the single plea in law, the applicant reiterates the arguments which have already been examined and rejected in the context of the fourth part of that plea. The factual and legal circumstances to which the applicant refers are the impossibility for the intervener, in the light of the legislative restrictions existing in Poland and in the European Union to combat alcoholism, to market alcoholic beverages under a trade mark which is already used for non-alcoholic beverages.

84 However, as has been found in the examination of the fourth part of the single plea in law, the Board of Appeal was correct to reject those factual and legal circumstances as evidence of bad faith on the part of the intervener.

85 Next, it must be found that the applicant is incorrect in submitting that the Board of Appeal relied ‘merely’ on the similarity between alcoholic beverages and non-alcoholic beverages in acknowledging that an undertaking active in the non-alcoholic beverages sector could also be active in the alcoholic beverages sector by using the same mark.

86 The finding, made by the Board of Appeal in paragraph 31 of the contested decision, of complementarity between non-alcoholic and alcoholic beverages and, therefore, of a similarity between them comes in addition to the examination, by the Board of Appeal, of the various elements put forward by the applicant in order to establish bad faith on the part of the intervener when it filed the application for registration of the contested mark. By that finding, the Board of Appeal merely illustrated the fact that, contrary to what the applicant submits, it is not illogical or unreasonable to assume that a company active in the production and marketing of non-alcoholic energy drinks may also decide to offer alcoholic energy drinks.

87 Lastly, as is apparent from paragraph 45 above, the applicant relies on an incorrect interpretation of the intervener’s observations when it submits that those observations show that the intervener did not intend to use the contested mark for alcoholic beverages.

88 In the light of the foregoing, the seventh part of the single plea in law must be rejected as unfounded.

The second part, alleging an incorrect assessment of the factual circumstances

89 The applicant claims that the Board of Appeal assessed its arguments in a selective manner, without examining the relevant circumstances in their entirety. It argues that those circumstances, taken together, show that the intervener’s commercial activity, since 2010, was not linked to the alcoholic beverages sector and follows a commercial logic which is contrary to extending the use of its BLACK trade mark to alcoholic beverages. In addition, in the applicant’s view, the chronology of events, namely the intervener’s request for the removal of its activities of producing and selling alcoholic beverages from the Polish business register shortly before the filing of the application for registration of the contested mark, confirms that the intervener did not have any intention to use that mark for alcoholic beverages and was, accordingly, acting in bad faith when it filed that application for registration in respect of, inter alia, alcoholic beverages.

90 In the present case, it must be found that, as follows from the examination of the third to seventh parts of the single plea in law and as the Board of Appeal stated, in essence, in paragraph 23 of the contested decision, the latter took into account all of the legal and factual circumstances presented by the applicant.

91 Furthermore, as follows from the examination of the parts of the single plea in law referred to in paragraph 90 above, the Board of Appeal did not make an error of assessment or of law by finding that none of the factual or legal circumstances put forward by the applicant was capable of establishing the existence of bad faith on the part of the intervener.

92 In that regard, as is apparent from paragraphs 22 to 36 of the contested decision, the Board of Appeal took into account the intervener’s initial area of activity and its commercial strategy of promoting its marks and correctly found that they do not present an obstacle to the future extension of its activities in order to cover alcoholic beverages in one or more EU Member States.

93 In particular, first, as is apparent from paragraphs 39, 40, 43 and 44 above, the Board of Appeal, in paragraphs 22 to 27 and 36 of the contested decision, took into account the chronology of the events which preceded the filing of the application for registration of the contested mark and correctly ruled out that the intervener’s request that the listing of the activities of producing and selling alcoholic beverages be removed from the Polish business register, shortly before the filing of that application for registration in respect of, inter alia, alcoholic beverages, could constitute evidence that it did not have any intention to use that mark for those goods.

94 Secondly, as has been found in paragraphs 60 to 62 above, the Board of Appeal correctly ruled out, in paragraphs 28, 29 and 36 of the contested decision, that the restrictions laid down by Polish and EU legislation concerning the advertising and promotion of alcoholic beverages could prevent the intervener from using the contested mark in a Member State other than Poland in order to meet the condition of use of that mark in respect of alcoholic beverages.

95 Thirdly, as has been found in paragraphs 70 to 73 above, the Board of Appeal was correct to rule out, in paragraph 30 of the contested decision, the application of the unitary character of the mark in the present case, by finding that the prohibitions on the promotion or advertising of alcoholic beverages, laid down by Polish legislation, were not comparable to the existence of an absolute ground for refusal for registration of a mark in part of the European Union.

96 Fourthly, as the General Court found in paragraphs 76 to 80, 85 and 86 above, it follows, inter alia, from paragraphs 31 to 36 of the contested decision that the Board of Appeal did not base the contested decision on non-existent market practices or the mere finding of similarity between non-alcoholic and alcoholic beverages. The Board of Appeal based its decision on the finding that the factual and legal circumstances presented by the applicant did not, taken together, constitute a body of relevant and consistent indicia capable of establishing bad faith on the part of the intervener when it filed the application for registration of the contested mark.

97 It therefore does not follow from the contested decision that the Board of Appeal assessed the relevant circumstances presented by the applicant in a selective manner without taking those circumstances into account in their entirety, or that it did not take into account the chronology of events. By contrast, it must be found that, in accordance with the case-law cited in paragraph 25 above, the Board of Appeal assessed, in an objective manner, all of the relevant circumstances of the present case in order to conclude that bad faith on the part of the intervener had not been established.

98 It follows that the second part of the single plea in law must be rejected as unfounded.

The first part, alleging incorrect interpretation of the concept of ‘bad faith’

99 The applicant submits that the Board of Appeal did not comply with the principles and criteria set out by the case-law on how to interpret bad faith, in particular those laid down in the judgment of 29 January 2020, Sky and Others (C-371/18, EU:C:2020:45, paragraphs 76 and 77). According to that judgment, it argues, certain factual circumstances justify a derogation from the principle that the use of a mark can begin during the grace period of five years following the date of its registration. That is the case, for example, where the applicant for registration does not have any intention to use the registered mark to market the products covered by that mark. According to the applicant, the Board of Appeal based the contested decision on the finding that the intervener had five years to use the contested mark. Accordingly, the Board of Appeal de facto ruled out all possibility of relying on a lack of any intention to use the contested mark when filing the application for registration for that mark as evidence of bad faith on the part of the intervener.

100 In the present case, it must be found that, contrary to the applicant’s submission, the Board of Appeal did not de facto rule out all possibility of establishing a lack of any intention on the part of the intervener to use the contested mark to cover alcoholic beverages.

101 In fact, the Board of Appeal found that the factual and legal circumstances presented by the applicant, taken individually as well as together, did not establish that the intervener did not have any intention of using the contested mark for alcoholic beverages or, consequently, that it was acting in bad faith when it filed the application for registration of that mark.

102 In other words, in accordance with the case-law referred to in paragraphs 21 to 30 above, the Board of Appeal, in essence, found that, while good faith on the part of the intervener was presumed, bad faith on its part could not be established on the basis of the finding that, when the application for registration of the contested mark was filed, the intervener was not carrying on economic activities linked to alcoholic beverages. According to the Board of Appeal, there were, in the present case, no relevant and consistent indicia tending to show that, when that application for registration was filed, the intervener had the intention either of undermining, in a manner inconsistent with honest practices, the interests of third parties, or of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark.

103 The findings made by the Board of Appeal are therefore not linked to the recognition of a time limit allowing the intervener to prove use of the contested mark within the five years following the registration of that mark.

104 It follows that the applicant is not justified in submitting that the Board of Appeal misinterpreted the concept of ‘bad faith’.

105 The first part of the single plea in law must therefore also be rejected as unfounded.

106 Since all of the parts of the single plea in law put forward by the applicant have been rejected as unfounded, the single plea in law, alleging infringement of Article 59(1)(b) of Regulation 2017/1001, must be rejected and, consequently, the action must be dismissed in its entirety.

Costs

107 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

108 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by EUIPO and the intervener, as applied for by them.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1. Dismisses the action;

2. Orders Amber Latvijas balzams AS to pay the costs.

Kecsmár

Madise

Truchot

Delivered in open court in Luxembourg on 3 June 2026.

V. Di Bucci

M. van der Woude

Registrar

President

Table of contents

Background to the dispute

Forms of order sought

Law

The third part, alleging an incorrect assessment of the measures taken by the intervener shortly before filing the application for registration of the contested mark

The fourth part, alleging an incorrect assessment of the legal prohibitions and restrictions, both in Poland and in the territory of the European Union, which prevent the extension of the use of a mark already registered for non-alcoholic beverages to alcoholic beverages

The fifth part, alleging breach of the principle of the unitary character of the EU trade mark

The sixth part, alleging erroneous references to non-existent market practices

The seventh part, alleging erroneous references to the similarity between non-alcoholic beverages and alcoholic beverages

The second part, alleging an incorrect assessment of the factual circumstances

The first part, alleging incorrect interpretation of the concept of ‘bad faith’

Costs

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* Language of the case: English.