The inclusion into the trademark law of bad faith on the part of the applicant for registration, as an absolute barrier to having the protective rights granted as well as the reason triggering its discontinuation through revocation, implies several questions. The crucial ones include the issue of how an applicant’s bad faith is understood; and the relationship occurring between an applicant’s bad faith and the formal system of acquiring the trademark protective right, which has been based upon the priority of application. Also, reckoning an application to register a trademark in bad faith as lone and effective barrier to registration is found both in provisions of the Community law and in legal acts of all its Member States. Accordingly, to properly explain the notion of bad faith on the part of a trademark applicant appears as a problem having general and substantial relevance. It has been generally accepted in all legal systems that is not up to the legislator to specify the criteria for good/bad faith. Instead, such criteria are to be decided upon through interpretation which is done in doctrine and judicature. In the case of bad faith of a trademark applicant, this role is performed by the CJEU (Court of Justice of the European Union in particular.
Considerations presented below are not meant as complete and comprehensive explanation of this area of problems. Rather than that, the aim is to put the same in clear order and present the Author’s own view on the understanding of bad faith of a party applying a trademark for registration and on the bad faith acting as barrier to registration under the regime of acquiring rights to trademarks.