Image credit: https://www.spiritualityandpractice.com/films/reviews/view/29283/bad-faith
Bad faith is having a moment in trade mark law.
I have found myself thinking about that lately because, in several recent opposition matters I have been involved in, bad faith has felt more prominent than it once did.
For years, section 62A of the Trade Marks Act 1995 (Cth) (The Act) could feel a little like a tick-box ground, something often included in the pleadings but not always where the real fight would be. That no longer feels quite right.
In the right case, bad faith can be one of the most revealing grounds available.
Because sometimes a trade mark dispute is not really about whether two marks are too close, whether reputation spills across, or whether the applicant is the true owner.
Sometimes the sharper question is this:
What exactly was this applicant trying to do?
That is what drew me to this topic. Bad faith is one of the few areas of trade mark law that allows the decision-maker to look past the neat wording of an application and examine the filing story properly, who knew what, when they knew it, and why the application was filed in the first place.
And once you start thinking about it that way, the comparative picture becomes fascinating.
Australia expressly recognises bad faith through a specific section of the Act. The European Union has built an increasingly sophisticated doctrine around it. The United States reaches many of the same concerns through different legal routes, particularly bona fide intent to use and fraud.
Different systems, same instinct: the register is there to protect genuine brand rights, not reward opportunism.
1) Australia, where the law says it plainly
In Australia, bad faith has an express statutory footing in the Act.
The two leading authorities remain Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81 and DC Comics v Cheqout Pty Ltd [2013] FCA 478.
In Fry Consulting, the Court made clear that the question is whether the conduct falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced people in the field. That matters because it shows bad faith is not confined to obvious dishonesty or fraud.
At the same time, it remains a serious allegation. Mere carelessness, overreach, or poor judgment will not be enough.
In DC Comics, the Court reinforced that all the surrounding circumstances are relevant, and that conduct designed to gain an unfair advantage can amount to bad faith.
That is what makes section 62A of the Act so useful. It creates room to ask the real questions.
Was there a prior relationship? Did the applicant know of the other party’s mark? Was the application filed to block, pressure, leverage, copy, or secure a commercial head start?
A recent example is Glittery Garden [2026] ATMO 8, where bad faith was established after the delegate considered the applicant’s broader filing pattern and the absence of any credible explanation for adopting the mark.
Useful, not because it changes the law, but because it shows ‘bad faith’ being used in a practical, modern way.
For a long time, bad faith could feel like the ground people included just in case, a simple tick box exercise. In the right matter, it now feels far more substantive than that.
2) The EU, same idea, more developed
In the EU, bad faith appears under Article 59 of Regulation (EU) 2017/1001.
The classic starting points are Lindt, Case C-529/07 and SkyKick, Case C-371/18.
What makes the EU position especially interesting is that it has moved well beyond straightforward copying cases.
In Lindt, the Court made clear that bad faith must be assessed by reference to all relevant circumstances existing at the filing date.
In SkyKick, the Court confirmed that filing without any intention to use may amount to bad faith in the right circumstances.
That is significant. It shows that EU bad faith is not just about taking someone else’s sign. It is also about misuse of the trade mark system itself.
That broader approach is why the recent EUIPN CP13 Common Practice on trade mark applications made in bad faith matters.
CP13 frames bad faith as covering both:
- misappropriation of third-party rights; and
- abuse of the trade mark system.
That is a major practical development. It makes clear that bad faith can extend to defensive filings, strategic re-filings, speculative filings and other conduct that looks less like genuine brand protection and more like gamesmanship.
3) The US, same concern, different tools
The US does not really have a broad standalone bad faith ground in the same way.
Instead, it tackles similar conduct through narrower doctrines, especially lack of bona fide intent to use and fraud.
Under 15 U.S.C. § 1051, an applicant must have a bona fide intention to use the mark in commerce.
In M.Z. Berger & Co., Inc. v Swatch AG, the Federal Circuit made clear that simply reserving rights is not enough.
And in In re Bose Corp., the Court confirmed that fraud requires a knowingly false, material representation made with intent to deceive.
So while the US uses different language, it is dealing with many of the same concerns, filings unsupported by genuine intention, or applications advanced through dishonesty.
Different wording, same instinct
That is what makes the comparison interesting.
- Australia asks whether the filing falls short of acceptable commercial behaviour.
- The EU asks whether there was dishonest intention or abuse of the system.
- The US asks whether there was genuine intent and honest dealing with the Office.
Different wording, same instinct.
Trade mark registers are meant to protect brands, not reward opportunism.
Why this topic matters
Bad faith seems to be shifting from a peripheral ground to a more meaningful one, particularly in Australian practice.
That matters.
As filing strategies become more sophisticated, global and commercially aggressive, the legal tools used to challenge them need to keep pace. Bad faith is one of those tools.
It is the doctrine that becomes most useful when an application looks tidy on paper, but the surrounding conduct tells a much uglier story.
And perhaps that is why it is getting more attention now. Because sometimes the real problem is not that a mark is too close to another.
Sometimes the real problem is that the filing itself was never clean to begin with.
And I, for one, am excited to see those ‘dirty’ trade marks off the register for good. One opposition at a time.
