Like the phenomenon “Je suis Charlie” during the tragic events of last January, the recent attacks in Paris dated November 13, 2015 were also an opportunity for spreading messages of support such as “Je suis Paris” or “Pray for Paris”.
Since the attacks, the INPI (France’s trademark office) counted more than ten attempts to file these slogans. In fact, as the slogans have since been shared worldwide and across numerous social networks, some people sought to seize the opportunity and take advantage of this phenomenon. In the aftermath of the attacks on the offices of the magazine, Charlie Hebdo, some fifty trademark applications “Je suis Charlie” were received.
However, like trademark applications relating to the attacks of Charlie Hebdo, INPI stated on Friday November 20, 2015, that it would not register as trademarks, signs such as “Je suis Charlie” or “Pray for Paris”.
In fact, according to INPI, such signs or variants thereof, appear to be contrary to public policy. Pursuant to Article L 711-3 of the French Code de la Propriété Intellectuelle, a request for registration indeed should be rejected if it appears that “its publication is likely to cause prejudice to public policy or morality”. The components of the signs in question cannot be taken up by an economic actor, due to the global perception of the terms, in light of the events that took place on Friday, November 13, 2015.
The basis for INPI’s decision to reject as trademarks, the slogans “Je suis Paris” and “Pray for Paris” is different however from its decision regarding the slogan “Je suis Charlie”. In fact, on January 13th 2015, INPI refused to register this slogan as a trademark on the grounds of the descriptive character of the terms used, as per Article L 711-1 of the French Code de la Propriété Intellectuelle.
Furthermore, INPI’s decision regarding the refusal to register the slogans, “Je suis Paris” and “Pray for Paris” as trademarks, is founded on a different legal basis: the prejudice to public policy or morality.
The concept of public policy is traditionally used to justify the registration of trademarks referring to drugs or profanities, but it can also be invoked in respect of the refusal to register slogans as trademarks.
For example, in 2003, the Director of the INPI decided to reject as a trademark, the slogan “Non à la Turquie en Europe” as it was contrary to public policy.
Thereafter, the Cour d’Appel de Paris confirmed the decision of the Director of the INPI by concluding that the sign was “a slogan which, contrary to the objective of trademark law, does not aim at distinguishing the goods and services of a company from those of another in order to guarantee the source or origin to a customer, but rather to establish to the advantage of the association […] operating a purely political privilege of the use of this sign”. (CA Paris, 4e ch., sect. A – June 9, 2004). According to the Court, the association tried “to obtain, through a misuse of trademark law, an exclusive right on one of the terms of this debate”.
In the same way and following the previous refusal to register as a trademark the slogan “Je suis Charlie” by the INPI, the Office For Harmonization In The Internal Market (OHIM), reported in a statement dated January 16, 2015 that the same sign will most likely be rejected as a trademark on the basis of Article 7(1) (f) of the Council Regulation on the Community trademark. Indeed, this article provides that trademarks which are contrary to public policy or morality shall not be registered.
The slogans “Je suis Paris” or even “Pray for Paris” are compositions which have been appropriated by both French citizens and the rest of the world. Used in multiple forms on social networks and through various expressions, the combination of these terms cannot be perceived by potential customers as a sign fulfilling the function of a trademark.
Thus, INPI’s refusal to register these signs is entirely in accordance with the stance that applicants for the trademarks, “JE SUIS PARIS” and “PRAY FOR PARIS” have tried to appropriate slogans benefiting from a strong popularity and which were not originally created for commercial purposes.
The slogan widely used both in and outside France since the attacks, conveys a message of support and therefore cannot be perceived by the public as a trademark guaranteeing the origin of the applicant’s goods and services.
Other than the legal basis, the stance taken by the INPI is most welcomed. Indeed, no one can be authorised to gain commercial advantage from such tragic events.