On May 21, 2025, the EU General Court handed down an interesting ruling on the notion of “advertising services” as a basis for validating the use of a trademark in class 35.

I. Facts

• Airbnb had owned the trademark of the same name registered in several classes, including class 35, since 2013.
• In 2020, Airtasker Pty Ltd asked the EUIPO to revoke this trademark.
• The EUIPO granted this request for certain classes, including class 35.
• Airbnb has appealed against this decision to the EU General Court.

II. Decision

The EU General Court dismissed Airbnb’s appeal on the basis of the following considerations:

• Advertising services consist of “providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position on the market and enabling them to acquire a competitive advantage through publicity”.
• The EU General Court considers that the evidence relating to the various accommodations or experiences on offer forms part of the promotional material for Airbnb’s business, namely the accommodation and leisure activities it offers via its platform, and is not an “advertising” service provided to a third party, in other words to the hosts.
• The presentation of accommodation or guest experiences in the content of magazines and newsletters is inherent to Airbnb’s commercial activity.
• In the Court’s view, the purpose of promoting the services of guests is not to advertise those services in order to maintain or create market share for those guests, but to facilitate the sale of the services offered by the applicant.
• Such activity is in fact only incidental to Aibnb’s promotion of its own services, which cannot be characterized as the provision of “advertising” services to third parties.

III. Comments

This ruling is interesting in that it raises questions about the activity provided by matchmaking platforms such as Airbnb, among many others.

• The EU General Court defines advertising services as the supply of goods or services to other undertakings for the purpose of promoting their services and thereby enabling them to gain a competitive advantage.
• Formally, it can be argued, as Airbnb seems to have done, that a matchmaking platform satisfies these requirements, since it enables advertisers to bring the services offered by these advertisers to the attention of members affiliated to the platform.
• If we were to follow this line of argument, however, we would have to conclude that any service aimed at disseminating a commercial message to third parties on behalf of a client would meet the definition of “advertising services”. This would be the case, for example, of a real estate agent.
• However, the EU General Court clearly refuses to qualify such services as “advertising services”. What, then, is the decisive criterion for determining whether or not an entity provides “advertising services”?
• In my opinion, the big difference lies in the fact that by promoting the services offered by his customers, the platform operator, or real estate agent, is also promoting his own activities, and not just those of his customer.
• In other words, in my opinion, a supplier of “advertising services” within the meaning of Class 35 is one who provides his customers with services aimed solely at promoting the products or services offered by his customers, to the exclusion of his own. The income of the “advertising services” supplier must therefore depend solely on the execution of the mandates entrusted to him by his customers, and not on their commercial success resulting, for example, from revenue sharing.

IV. Key take-aways

This ruling invites companies to pay particular attention to the structuring of their offers if they wish to benefit from the protection conferred on their trademarks in class 35. Here are the key points to bear in mind:

a) What you need to do to be recognized as providing an advertising service:

1. Act exclusively on behalf of third-party customers: the service must be aimed exclusively at promoting a customer’s products or services, and not those of the entity providing the service.
2. Avoid hybrid models: the service provider’s revenues should derive from the execution of the advertising mandate (e.g., flat-rate or pay-per-click remuneration), and not from revenue sharing or commission on sales made via the platform.
3. Emphasize the independence of the advertising message: the promotional action must be clearly formulated as a service rendered to a third party, distinct from the provider’s own commercial interests.
4. Formalize an advertising mandate: ideally, the company should be able to demonstrate that it is acting on the basis of a specific advertising contract with precise promotional obligations on behalf of the customer.
5. Provide appropriate proof: invoices, targeted campaigns, marketing deliverables, performance reports or any other document attesting that the primary objective was to exclusively promote the customer’s services or products.

b) What to watch out for:

1. Don’t mix self-promotion with third-party promotion: if the communication also promotes the platform’s own services or brand, it can be ruled out as an “advertising service”.
2. Don’t limit yourself to passive exposure: simply putting a product online on a platform is not enough – the action must include real promotional work for the benefit of the customer.
3. Don’t rely solely on automatic tools: platforms that automatically generate files or profiles from data supplied by third parties may not meet the legal requirements if they are not actively involved in promotion.

c) Strategic recommendations for matchmaking platforms wishing to be recognized as providing advertising services

To get closer to the requirements laid down by the EU General Court, marketplaces like Airbnb can strive to take the following steps if they wish to have their trademarks registered for “advertising services”:

1. Segment their offering: create a clearly distinct “advertising service” offering – for example, a premium service with targeted marketing actions, sponsored campaigns or broadcasting on external channels.
2. Autonomous, traceable invoicing: set up specific invoicing for these advertising services, independently of commissions or referral fees.
3. Avoid success-based revenue models: move away from performance-based models (e.g. percentage on sales) in favor of fixed or flat-rate remuneration for promotional action.
4. Document specific services provided to customers: keep tangible proof that actions taken have been designed solely in the customer’s interest (marketing briefs, dedicated deliverables, performance analyses).
5. Draft explicit contractual clauses: include a specific section on “advertising services” in your GTCs or contracts, with a definition, scope and limits.

In doing so, platforms should be able to claim, in good faith and in a defensible manner, that they provide “advertising services” within the meaning of Class 35 – even if they are otherwise engaged in matchmaking activities.

About the author
Philippe Gilliéron is an attorney at BMG Avocats (www.bmglaw.ch) in Geneva, specializing in intellectual property law, in particular trademarks, designs, patents and copyrights, as well as technology rights, in particular artificial intelligence, and data protection. He advises Swiss and international companies on their intangible asset protection strategies, and represents his clients before the Swiss courts and the Swiss Federal Institute of Intellectual Property (IPI).

For any questions relating to intellectual property, digital technology, artificial intelligence or data protection, contact Philippe Gilliéron, intellectual property attorney in Geneva, at philippe.gillieron@bmglaw.ch.