Trademarks: Right of priority does not retrospectively trace back the owner’s rights as from the date of the first filing!

Symbole copyrightArticle 4 of the Convention of Paris dated March 20, 1883 provides that the right of priority allows the trademark owner of the first trademark application duly filed in one country to benefit from a period of six months to extend its protection in other countries by means of filing known as priority claim. It has been incorporated in Article L 712-12 of the French Intellectual Property Code.


Contrary to traditional beliefs, the function of the right of priority is not to retrospectively trace back the priority claim as from the date of the first filing of the application. Indeed, acts of use during the priority period by a third party cannot be qualified as an infringement. It is only from the date of the filling application of the priority claim that the trademark owner will be able to sue counterfeiting third parties for infringing his rights or for illegal exploitation its trademark. However, during the priority period, the trademark owner is protected against all applications or usages of similar or confusing signs. Intermediary rights claimed by third parties cannot be invoked during this period.


Nowadays, the right of priority encounters uncertainties concerning its applications and effects. The diverging solutions proposed by Offices and Courts evidence this fact. For economical and practical reasons, the right of priority is nonetheless relevant since it assures the protection the holder’s rights and balances between the interest of the applicant and third parties.