On April 3, 2025, the Supreme Court had the opportunity to remind a litigant slightly unfamiliar with trademark law that it was not sufficient to allege non-use in a civil action, but that it was also necessary to make it plausible.

In the absence of any evidence whatsoever, the party against whom non-use of the trademark is invoked does not need to prove such use. It is sufficient for that party to convince the court that the absence of non-use has not been made plausible.

This was the case in the present case, where the Supreme Court held that the case should be referred back to the lower court to determine whether the “supporting documents” relied on by the respondent but not mentioned in the incomplete statement of facts in the contested judgment made such use plausible.

It should be noted that only the opposition procedure allows the defendant to simply allege non-use. Whether in the administrative procedure provided for in Art. 35a of the Trademark Act or in civil proceedings, the party claiming non-use must, on the other hand, make it plausible by providing a minimum of evidence.