CABINET CHAILLOT

“Je suis Charlie” trademark: Law supporting ethics

INPI has received and rejected more than fifty trademark registration applications for “Je suis Charlie” (I am Charlie), slogan created by a journalist after the attack against Charlie Hebdo on 7 January 2015.

Particularly inspired by famous slogans such as “Ich bin ein Berliner” by John Fitzgerald Kennedy on 26 June 1963 and “We are all American” after the attacks of 11 September 2001, the logo represents the sentence “Je suis Charlie” written in white and grey with a black background, without any graphic element. The author has used the logo of Charlie Hebdo for the word “Charlie” and the typography of the magazine for “Je suis”.

During the hours following the attack, “Je suis Charlie” was used on social networks by millions of people. This slogan has become a world rallying cry, symbol of the compassion and support from the population to the victims of the attacks and of the defence of the freedom of expression. It was also used in all languages during the march of support organized the days after all over the world.

Against the attempts to commercially appropriate this slogan, INPI has declared that the Office would reject all trademark applications “Je suis Charlie”, because this slogan does not meet the criterion of distinctive character: “this slogan cannot be picked up by an economic actor because of its wide use by the community”.

 Indeed, this decision has a legal basis.

For protecting a slogan as a trademark, the article L711-1 of the Intellectual Property Code indicates that “the assembling of words” can constitute a trademark. However, the slogans must meet the same requirements as any other trademark and particularly have their own distinctive character.

It will be recalled here that, to be valid, a trademark must be distinctive, that is, according to the articles L711-1 and L711-2 a) and b) of the Intellectual Property Code, it must not be the “necessary, generic or usual” designation in the common or professional language of the product or service. In addition, the concerned sign must not describe the product or service, its nature, its destination or its quality.

Thus, the distinctiveness of a sign is always considered in concreto with respect to the products/services concerned by the act of filing.

This distinctiveness condition results from the original guarantee function of the trademark and the interpretation of the article 2 of the Community Directive n°2008/95/CE on 22 October 2008. According to this text, a sign constitutes a valid trademark provided that it can “distinguish the products or services of a company from those of other companies”.

From the Community's point of view, OHIM is particularly strict regarding the appraisal of the distinctive character of advertising slogans. For example, the registration of the slogans “Passion for wood” for building materials or “Leave an impression” for bar, entertainment and advertising services have been rejected.

Indeed, OHIM considers that the public interprets these expressions as advertising messages which emphasize the positive aspects of the goods and services rather than signs which can identify the goods and services themselves.

However, the Court of Justice considered in a case opposing Audi to OHIM, regarding the registration of the slogan “Vorsprung durch Technik” (“the advance by technology”), that the fact that a trademark can be interpreted by the public as a promotional formula was not sufficient per se to conclude to its original indication absence (CJUE, January 21, 2010, C-398/08).

If the slogan conveys an objective message “according to which the technical superiority allows to produce and provide better products and services”, the trademark can nevertheless indicate to the consumer the commercial origin of the concerned products and services.

The court thus considered that the slogan showed a certain originality and force, which can be easily remembered by the consumer and, on the other hand, the public was used for many years to establish a link between this slogan and the products of Audi.

On the international plan, INPI is generally less strict. For example, it has accepted the following registrations: “Le monde sans fil est à vous” for telephony services, “Quoi de plus naturel” for dairy products, “Vous avez le droit” for printing products and magazines.

INPI has declared that it would reject right away all trademark applications “Je suis Charlie” due to the lack of distinctiveness by considering that this slogan cannot “be picked up by an economic actor because of its wide use by the community”.

This appraisal “in abstracto” and “a priori” of the distinctiveness of the contentious slogan can be surprising since the appraisal of the distinctiveness of a sign is generally subjected to a case-by-case and in concreto analysis regarding the products and services concerned by the trademark application.

Thus, all trademark applications “Je suis Charlie” should be rejected regardless of the products and services concerned by the filing.

INPI explains this decision by considering the lack of distinctiveness of the slogan which cannot be  picked up by an economic actor because of its wide use by the community.

Indeed, contrary to the above-mentioned advertising slogans created by the economic actors in relation to their offer of goods/services and known as such, the slogan “Je suis Charlie” has not been created and used by an economic actor for commercial purposes.

On the contrary, the slogan “Je suis Charlie” has been created in response to a news event irrespectively of any commercial consideration and used by millions of people as a symbol of the support to the victims of the attacks against Charlie Hebdo and of the defence of the freedom of expression.

Indeed, for the community, this slogan is now (exclusively) a symbol of these events and the freedom of expression. Therefore, regardless of the goods/services concerned by the trademark applications “Je suis Charlie", this slogan will be devoid of distinctive character. For the public, “Je suis Charlie” will be exclusively associated with the attack against Charlie Hebdo and will represent the freedom of expression.

Thus, its wide use by the community, in relation to the above-mentioned events, impedes the distinctiveness of the slogan “Je suis Charlie”.

This slogan should therefore remain free of right and belong to the public field as wanted by its creator.

See also : <link http: www.inpi.fr fileadmin mediatheque pdf presse cp_inpi_marque_je_suis_charlie.pdf external-link-new-window je suis>INPI declaration and <link https: oami.europa.eu ohimportal en web guest news action view external-link-new-window je suis>OHIM advice

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