The discovery always comes at the same moment. You are preparing a European launch, a distributor asks for the registration number, or a marketplace refuses a listing — and the register already carries your name, for your goods, in somebody else's hands. The reflex is to assume a stranger. Usually it is not: the person on the register is someone who knew the brand because they worked with it.
Who files your mark, in practice
- A former distributor. The most frequent case, and the hardest. The relationship was good, the contract said nothing about intellectual property, and the filing was made either as a precaution nobody mentioned or as a position to hold when the relationship started to turn.
- An agent or an importer. Sometimes filed in good faith, genuinely « to protect you on this market », and never transferred because nobody raised it again. The intention changes nothing about the consequence: the asset is theirs, and it is the reason you cannot change partner.
- A professional speculative filer. A business model: file names seen on Asian fairs, platforms and catalogues, wait for the owner to need them, sell them back. These filings cover broad lists of goods, come from holders with portfolios of unrelated names, and show no trace of any commercial activity.
- A competitor. Less common, more deliberate, and aimed at the launch rather than at a resale. The sign filed is often close rather than identical, which makes it a blocking position rather than an outright theft and complicates the argument.
- Someone from your own side. A former employee, a consultant, or the local person who set up your European structure and filed in their own name because it was faster. This one is discovered late, usually when they leave.
What can be argued, and against what
The first route is bad faith. European law treats it as an absolute ground: a registration can be declared invalid if the applicant filed dishonestly, and the action can be brought before the office or raised as a counterclaim when the holder sues you. What has to be shown is more than knowledge. Knowing your brand existed is not enough on its own — the circumstances must point to an intention other than using the mark for one's own goods: blocking your entry, extracting a payment, holding a lever in a negotiation, or filing a list of goods nobody could intend to trade in. Intention is proved with documents, which is the whole difficulty and the whole reason the next section matters.
The second route is narrower and much more useful when it applies. European trade mark law carries a specific provision aimed at the filing made by the proprietor's own agent or representative, in their own name, without the proprietor's consent. Where it applies, you can oppose the application, attack the registration, and in certain conditions claim the mark rather than merely have it cancelled — which is the difference between getting your name back and starting again from an empty register. What counts as an agent or representative is read on the substance of the relationship, not on the word in the contract: a distributor acting on your instructions, with your materials, under a relationship of trust, can fall within it even if the paperwork says « independent buyer ».
The third route attacks the registration where it is weakest: non-use. A European mark has to be put to genuine use in the Union for the goods it covers, and once the period the legislation allows after registration has passed, anybody can ask for revocation for the goods on which it has not been used. Genuine means commercial: a token invoice, a website nobody can order from, a single sample shipment arranged to create a file, are read for what they are. This is the route that works against a speculative filer, who by definition never traded. It is useless against a former distributor who is still selling your category under the mark every day.
The evidence, which has to exist before you need it
- The correspondence that establishes the relationship. The messages in which you appointed them, sent the artwork, approved the packaging, gave instructions on prices or territories. This is what turns a distributor into an agent or representative for the purposes of the specific rule, and it is also what shows they knew.
- The contract and its intellectual property clause. Or the absence of one, which is itself a fact worth recording. A clause stating that the brand belongs to you and that the distributor may not file it settles most of these disputes before they start.
- Invoices, packing lists and shipping documents. Dated proof that goods bearing the mark were sold, to whom, and from when. These are the documents that establish your earlier use, and they are the ones nobody can reconstruct later.
- Artwork, catalogues and packaging proofs with dates. Design files with their metadata, printer's proofs, dated catalogues, photographs of the stand with the brand visible. Keep the originals, not the versions that have been re-saved and have lost their dates.
- Evidence of your reputation before their filing. Fair participations, press coverage, platform listings, order history by country. It does not create a right by itself in a first-to-file system, and it is what makes an intention look dishonest rather than coincidental.
- The register itself, watched. A periodic search for your own name — in the European register and in the national registers, which are separate — turns a discovery into a date you chose. Finding a filing while the opposition window is still open is a different problem from finding a registration granted long ago.
Why the arithmetic always favours the preventive filing
Here is the honest version. Recovery is a procedure: written submissions, rounds of evidence, a decision, an appeal, and in some configurations a national court as well. It runs long, it is paid in professional fees throughout, and the outcome is genuinely uncertain because it turns on proving somebody else's intention from documents you may not have. Meanwhile you cannot use your own name: the distributor you wanted to replace holds the position, the marketplace takes your listing down on the strength of the registration against you, and customs can stop your own goods at the border because on paper you are the infringer. A preventive filing, set against that, is a form, a list of classes and a fee. The two things are not in the same order of magnitude, and nobody who has been through the first one needs to be persuaded of the second.
Do the following now and most of this article stops applying to you. File the mark in the company's own name in every market you sell into, before you appoint anybody there. Put an express clause in every distribution, agency and sourcing contract: the brand belongs to us, you may not file it or anything resembling it, and anything already filed is transferred to us on request. And set a recurring reminder to search your own name in the European and national registers — finding a troublesome application while it is still an application is the cheapest version of this problem there is.