On 29 January 2020, the Court of Justice of the European Union (CJEU) handed down its judgment in the Sky v SkyKick C-371/18 case, on which there has been a wealth of commentary and speculation (in particular in the wake of the EU Advocate General’s (AG) non-binding opinion delivered on 16 October 2019).The judgment follows a referral from the High Court of England and Wales in trade mark infringement proceeding brought by Sky against SkyKick. SkyKick counterclaimed by attacking the validity of Sky’s trade marks on the grounds that: a) Sky’s trade mark specifications lacked the required clarity and precision; and b) the specifications covered by Sky’s trade marks covered terms for which Sky had no reasonable rationale for seeking registration and, therefore, the registrations were filed in bad faith.SkyKick’s counterclaim raised several questions in the proceedings which required clarification. Mr Justice Arnold therefore referred the following questions to the CJEU:“(1) Can an EU trade mark or a national trade mark registered in a Member State be declared wholly or partially invalid on the ground that some or all of the terms in the specification of goods and services are lacking in sufficient clarity and precision to enable the competent authorities and third parties to determine on the basis of those terms alone the extent of the protection conferred by the trade mark?(2) If the answer to question (1) is yes, is a term such as “computer software” too general and covers goods which are too variable to be compatible with the trade mark’s function as an indication of origin for that term to be sufficiently clear and precise to enable the competent authorities and third parties to determine on the basis of that term alone the extent of the protection conferred by the trade mark?(3) Can it constitute bad faith simply to apply to register a trade mark without any intention to use it in relation to the specified goods or services?(4) If the answer to question (3) is yes, is it possible to conclude that the applicant made the application partly in good faith and partly in bad faith if and to the extent that the applicant had an intention to use the trade mark in relation to some of the specified goods or services, but no intention to use the trade mark in relation to other specified goods or services?(5) Is section 32(3) of the UK Trade Marks Act 1994 compatible with [Directive 2015/2436] and its predecessors?” Whilst it was expected that the CJEU would follow the AG’s opinion, the CJEU has instead handed down a somewhat conservative judgment which may be summarised as follows:In response to questions 1 & 2: an EU or national trade mark cannot be declared wholly or partially invalid on the ground that the terms used to designate the goods and services in respect of which that trade mark was registered lack clarity and precision;In response to questions 3 & 4:a trade mark application made without any intention to use the trade mark in relation to the goods and services covered by the registration constitutes bad faith if the applicant for registration of that mark had the intention either of undermining (contrary to honest practices) the interests of third parties, or of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark;when the absence of the intention to use the trade mark in accordance with the essential functions of a trade mark concerns only certain goods or services referred to in the application for registration, that application constitutes bad faith only in so far as it relates to those goods or services;In response to question 5: EU law does not preclude a provision of national law under which an applicant for registration of a trade mark must state that the trade mark is being used in relation to the goods and services in relation to which it is sought to register the trade mark, or that he or she has a bona fide intention that it should be so used, in so far as the infringement of such an obligation does not constitute, in itself, a ground for invalidity of a trade mark already registered.Importantly, the judgment confirms that under EU law an EU/national trade mark registration cannot be invalidated on the grounds that the specified goods and services lack clarity or precision. This will come as a relief to brand owners with trade mark registrations covering broad terms such as “computer software”, who may otherwise have faced invalidity actions had the CJEU followed the tone of the AG’s opinion. The judgment is therefore likely to be seen as a ‘big win’ for brand owners.As far as broad specifications are concerned, the judgment maintains the status quo and does not change the approach followed previously by UK practitioners and the UK Courts. The position with respect to the bad faith question may be somewhat different, and we will have to see how national courts interpret the CJEU’s clarification of what constitutes a finding of bad faith.The Sky v SkyKick case will now return to the High Court, and it will be interesting to see how the High Court addresses the CJEU’s judgment in its decision.For more information about the implications of the judgment or for trade mark advice more generally, brand owners are encouraged to get in touch with our trade mark team.