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Marcel Pemsel
Aug 27, 2026, 1:26:39 AMAug 27
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Angry Birds crash into bad faith
Let us start with a little quiz. For which concept(s) of trade mark
law are the following conditions relevant: A reputation of the earlier
mark, a link between the earlier mark and the contested trade mark and
free-riding on the reputation of the earlier mark?
(a) Trade marks with a reputation (Art. 8(5) and 9(2)(c) EUTMR)
(b) Bad faith (Art. 59(1)(b) EUTMR)
(c) Both
(d) Neither
According to a recent decision of the Board of Appeal (“BoA”) of the European Union Intellectual Property Office (“EUIPO”) (R1791/2025-4) the correct answer is (c).
Background
In 2024, Eagleline Limited (“Eagleline”) obtained the registration of the following figurative EU trade mark:
(a) Trade marks with a reputation (Art. 8(5) and 9(2)(c) EUTMR)
(b) Bad faith (Art. 59(1)(b) EUTMR)
(c) Both
(d) Neither
According to a recent decision of the Board of Appeal (“BoA”) of the European Union Intellectual Property Office (“EUIPO”) (R1791/2025-4) the correct answer is (c).
Background
In 2024, Eagleline Limited (“Eagleline”) obtained the registration of the following figurative EU trade mark:
It was registered for goods and services related to gambling and gaming in classes 9, 41 and 42.
In 2024, Rovio Entertainment Ltd (“Rovio”) filed an application for declaration of invalidity against Eagleline’s trade mark. It was based on bad faith and several earlier trade marks, which were registered for a broad range of goods and services in various classes, namely the word mark “ANGRY BIRDS” and the following three figurative marks:
The
Cancellation Division of the EUIPO upheld the invalidity application on
the basis of bad faith. Eagleline appealed to the BoA.
The Board of Appeal’s decision
The BoA dismissed the appeal and confirmed that the contested application was filed in bad faith.
a. The BoA’s assessment was based on the following facts:
Rovio released the mobile game “ANGRY BIRDS” in 2009, in which a flock of angry birds tries to save their eggs from green-coloured pigs. The players use a slingshot to launch different types of birds at structures built by the pigs, aiming to destroy the buildings and eliminate all the pigs. The main protagonist of the game is a red desert cardinal bird, called Red.
Since 2009, the mobile game “ANGRY BIRDS” has expanded into television shows, movies and merchandise. It became one of the most downloaded mobile games worldwide. Rovio owns the copyright over the main protagonist.
In an EUIPO decision from 2012, the Office found that “ANGRY BIRDS” enjoyed a reputation in the EU for “software and computer programs”.
In April 2023, Rovio was acquired by Sega, a multinational video game and entertainment company, for around EUR 700 million, which was widely reported in various media publications.
A market survey conducted in several non-EU countries showed brand awareness of “ANGRY BIRDS” of 90 %.
b. On the basis of this evidence, the BoA concluded that Rovio’s earlier trade marks enjoyed a high reputation in the EU.
c. The signs also showed substantial similarities. The red bird in the contested mark reproduced the majority of Red’s characteristics. “ANGRY BIRDS” and “CRASH birds” were also deemed to be similar on account of the common word “BIRDS” and the fact that “CRASH” evokes the gameplay of Rovio’s “ANGRY BIRDS” game.
d. The Board found that the public would establish a link between the gambling-related goods and services of the contested mark and mobile games of the earlier marks. Even though games and gambling belong to different sectors, they overlap because video games often include elements of chance, the distribution channels and targeted consumers overlap and the monetisation models are similar.
e. The BoA concluded that Eagleline knew about the “ANGRY BIRDS” game and its main character from the fact that both parties operated in the same economic sector, the use of verbal elements with a similar structure, a similar colour scheme, the concept of “crashing” birds, the registration for goods and services relating to gaming and software services, the high reputation of the earlier marks and the widely reported acquisition of Rovio by SEGA.
f. The BoA also concluded from these factors that Eagleline intended to create an association with the earlier marks, thereby free-riding on the latter’s reputation. This was considered to be a dishonest intention within the meaning of the case law on bad faith. There was no credible justification for adopting the contested mark. The absence of explanations as to how and why the specific combination of the verbal and figurative elements was conceived was deemed a strong indication that the contested mark was not filed in good faith.
Comment
The main difference between bad faith and claims based on a trade mark with a reputation seems to be that the former requires a subjective element (a dishonest intent), while the latter does not (e.g. T-246/25 at para. 105). The BoA’s decision suggests that it is rather easy to infer knowledge from the fact of the reputation, at least if the reputation is sufficiently strong and the goods and services are identical or closely related.
This line of case law makes defending trade marks with a reputation easier:
1. The owner of the later mark cannot rely on acquiescence (Art. 61 EUTMR).
2. It allows taking action against free-riders even if the earlier mark has not been registered.
3. An action based on bad faith is less likely to trigger a counterattack on the (registered) reputed trade mark, e.g. for non-use.
4. Since bad faith is an absolute ground for invalidity, any person can file an invalidity application, not just the owner of the reputed mark. This would allow, e.g. EU affiliates, of non-EU companies to take action against the later mark.
The Board of Appeal’s decision
The BoA dismissed the appeal and confirmed that the contested application was filed in bad faith.
a. The BoA’s assessment was based on the following facts:
Rovio released the mobile game “ANGRY BIRDS” in 2009, in which a flock of angry birds tries to save their eggs from green-coloured pigs. The players use a slingshot to launch different types of birds at structures built by the pigs, aiming to destroy the buildings and eliminate all the pigs. The main protagonist of the game is a red desert cardinal bird, called Red.
Since 2009, the mobile game “ANGRY BIRDS” has expanded into television shows, movies and merchandise. It became one of the most downloaded mobile games worldwide. Rovio owns the copyright over the main protagonist.
In an EUIPO decision from 2012, the Office found that “ANGRY BIRDS” enjoyed a reputation in the EU for “software and computer programs”.
In April 2023, Rovio was acquired by Sega, a multinational video game and entertainment company, for around EUR 700 million, which was widely reported in various media publications.
A market survey conducted in several non-EU countries showed brand awareness of “ANGRY BIRDS” of 90 %.
b. On the basis of this evidence, the BoA concluded that Rovio’s earlier trade marks enjoyed a high reputation in the EU.
c. The signs also showed substantial similarities. The red bird in the contested mark reproduced the majority of Red’s characteristics. “ANGRY BIRDS” and “CRASH birds” were also deemed to be similar on account of the common word “BIRDS” and the fact that “CRASH” evokes the gameplay of Rovio’s “ANGRY BIRDS” game.
d. The Board found that the public would establish a link between the gambling-related goods and services of the contested mark and mobile games of the earlier marks. Even though games and gambling belong to different sectors, they overlap because video games often include elements of chance, the distribution channels and targeted consumers overlap and the monetisation models are similar.
e. The BoA concluded that Eagleline knew about the “ANGRY BIRDS” game and its main character from the fact that both parties operated in the same economic sector, the use of verbal elements with a similar structure, a similar colour scheme, the concept of “crashing” birds, the registration for goods and services relating to gaming and software services, the high reputation of the earlier marks and the widely reported acquisition of Rovio by SEGA.
f. The BoA also concluded from these factors that Eagleline intended to create an association with the earlier marks, thereby free-riding on the latter’s reputation. This was considered to be a dishonest intention within the meaning of the case law on bad faith. There was no credible justification for adopting the contested mark. The absence of explanations as to how and why the specific combination of the verbal and figurative elements was conceived was deemed a strong indication that the contested mark was not filed in good faith.
Comment
The main difference between bad faith and claims based on a trade mark with a reputation seems to be that the former requires a subjective element (a dishonest intent), while the latter does not (e.g. T-246/25 at para. 105). The BoA’s decision suggests that it is rather easy to infer knowledge from the fact of the reputation, at least if the reputation is sufficiently strong and the goods and services are identical or closely related.
This line of case law makes defending trade marks with a reputation easier:
1. The owner of the later mark cannot rely on acquiescence (Art. 61 EUTMR).
2. It allows taking action against free-riders even if the earlier mark has not been registered.
3. An action based on bad faith is less likely to trigger a counterattack on the (registered) reputed trade mark, e.g. for non-use.
4. Since bad faith is an absolute ground for invalidity, any person can file an invalidity application, not just the owner of the reputed mark. This would allow, e.g. EU affiliates, of non-EU companies to take action against the later mark.
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