The 5-Year Non-Use Revocation Rule in France: Article L.714-5 and the Déchéance Procedure

A registered trade mark in France is not a permanent asset that can be held indefinitely without use. Under Article L.714-5 of the Code de la Propriété Intellectuelle (CPI), a trade mark owner who, without proper justification, has not made genuine use (usage sérieux) of the mark for the goods or services for which it is registered for an uninterrupted period of five years may be deprived of their rights. This is known as déchéance (revocation for non-use). Since April 1, 2020, the INPI has had direct administrative competence to hear revocation proceedings, transforming this from a costly court process into a fast, accessible tool for clearing the register of dormant marks.

The Legal Basis: Article L.714-5

Article L.714-5 of the CPI provides that a trade mark owner shall be deprived of their rights if, without proper reasons (justes motifs), they have not made genuine use of the trade mark for all or part of the goods or services for which it is registered, for an uninterrupted period of five years.

The five-year period begins to run from the date of completion of registration. If genuine use commenced but was subsequently suspended for an uninterrupted five-year period, revocation may equally be declared. The revocation applies only to the goods or services for which use is not proven — the INPI may order partial revocation, maintaining the registration for goods or services in genuine use.

What Constitutes “Genuine Use” (Usage Sérieux)?

French law follows the EU standard for genuine use, as interpreted by the CJEU. The INPI assesses genuine use based on the following criteria:

• Actual commercial activity in France: The mark must be used in connection with the sale, offering, or promotion of goods or services in the French market. Token or symbolic use does not qualify.
• Use in the form registered or in non-materially altered forms: Use in a form that differs from the registration but does not alter the distinctive character is still considered genuine. Minor variations in font, colour, or layout are generally acceptable.
• Use for the registered goods or services: The use must relate to the goods or services covered by the registration. The INPI has adopted a strict approach to this requirement, following EU practice: it regularly orders partial revocation, narrowing registrations to the specific subcategories of goods for which use is actually proven.
• Use by the owner or with consent: Use by a licensee or authorised third party counts.
• Quantitative and qualitative assessment: The use need not be quantitatively significant to be genuine, but the evidence must provide sufficient indications concerning the commercial volume, territorial scope, duration, frequency, and nature of the use. The more limited the volume, the more additional evidence is needed to dispel doubt about its seriousness.

The April 2020 Procedural Revolution

Before April 1, 2020, revocation actions for non-use could only be brought before the judicial courts (Tribunaux judiciaires). This was expensive, time-consuming, and procedurally complex. The 2019 reform, transposing EU Directive 2015/2436, granted the INPI direct administrative competence over revocation (déchéance) proceedings.

The practical impact has been transformative:

• Lower cost: The official fee for a revocation application at the INPI is €600 (as of the current fee schedule) — a fraction of the cost of court proceedings, which required lawyers, court fees, and often expert witnesses.
• Faster resolution: Proceedings before the INPI typically take between five and eleven months depending on the number of exchanges between the parties, compared to years in the courts.
• Less formality: The procedure is entirely written (though oral observations may be requested). No mandatory legal representation is required.
• No interest to act required: Unlike court proceedings, the applicant before the INPI does not need to demonstrate a specific legal interest in the revocation. Any person may file. This is a major change that has dramatically increased accessibility.
• Silence is tantamount to rejection: If the INPI does not render its decision within three months of the close of the adversarial phase, the revocation request is deemed rejected. This creates a practical time limit on proceedings.

The results have been striking: in the first two years alone, the INPI received nearly 340 revocation requests for non-use, vastly exceeding the volume that courts had previously handled. After five years of operation, the system has matured into a widely adopted, stable part of French trade mark practice.

The Burden of Proof

In revocation proceedings for non-use, the burden of proving genuine use falls on the trade mark owner, not on the party requesting revocation. Once the action is deemed admissible, the owner has two months to submit observations and evidence of use (or proper justification for non-use).

Evidence of use typically includes invoices, distribution agreements, advertising materials, product packaging, photographs of goods as sold in France, import and customs records, and any other documentation demonstrating genuine commercial activity. The INPI has shown it will assess evidence strictly — it has rejected voluminous evidence files where the materials were insufficiently organised, dated, or relevant.

Proper Reasons for Non-Use (Justes Motifs)

The trade mark owner may defend against revocation by showing that non-use was justified by proper reasons beyond the owner’s control:

• Import restrictions or trade embargoes.
• Regulatory barriers preventing the marketing of the goods (e.g., pending pharmaceutical or food safety approvals).
• Force majeure events.

Purely commercial reasons — such as lack of demand, financial difficulties, or strategic decisions to delay market entry — are generally not accepted as proper justification.

Coordination with the Courts

Civil courts retain jurisdiction over revocation actions raised as counterclaims in trade mark infringement proceedings. The “res judicata” principle prevents parallel proceedings: if the INPI or a court has already rendered a final decision between the same parties on the same subject, the other body must declare the action inadmissible. Where proceedings are pending before both bodies simultaneously, the later-filed action may be stayed pending the outcome of the first.

Appeals

Decisions of the INPI in revocation proceedings may be appealed to the Court of Appeal (Cour d’appel) having jurisdiction over the applicant’s domicile. The appeal is a full review on both fact and law, and new evidence may be submitted at the appeal stage.

Strategic Recommendations

• Audit your portfolio: If you hold registrations in France covering goods or services you are not actively using, those registrations are vulnerable. The post-2020 INPI procedure makes revocation fast, cheap, and accessible to any party.
• Maintain evidence of use: Keep organised, dated records of all commercial activity under your marks in France. This is your primary defence in any revocation proceeding.
• Use the INPI revocation route offensively: If a dormant prior mark is blocking your application or business operations, the INPI’s administrative déchéance procedure is the fastest, most cost-effective way to clear the obstacle.
• Request proof of use in oppositions: If you face an opposition based on a mark registered for more than five years, require proof of use. This can eliminate the opposition entirely.
• Be aware of partial revocation: The INPI follows EU practice in ordering partial revocation — narrowing registrations to the specific goods or services for which use is proven. Broad registrations are particularly vulnerable.

Common Mistakes

• Assuming registration is permanent: A registered mark that is not used for five consecutive years is vulnerable to revocation by anyone, without demonstrating a legal interest.
• Relying on token use: Isolated or artificial transactions designed solely to maintain the registration may not qualify as genuine use.
• Failing to document use: The burden falls on the owner, and the INPI applies a strict standard. Disorganised or undated evidence will not suffice.
• Maintaining overly broad registrations: The INPI will narrow a registration to the specific subcategories of goods actually used. Broad specifications without matching use are vulnerable to partial cancellation.
• Ignoring the INPI procedure: Some practitioners still default to court proceedings out of habit. For standalone revocation actions, the INPI route is now faster, cheaper, and more accessible.

Key Takeaway

The five-year non-use revocation rule under Article L.714-5 has always been a feature of French trade mark law, but the April 2020 transfer of competence to the INPI has fundamentally changed the practical landscape. Revoking a dormant mark is now faster, cheaper, and open to anyone without proof of legal interest. For trade mark owners, this means unused registrations are actively vulnerable. For applicants and competitors facing blocking marks, the INPI’s administrative déchéance procedure is a powerful tool to clear the register. In either case, genuine use in the French market is the foundation of trade mark rights, and the burden of proving it falls squarely on the owner.