First sound trademark published by the French Trademark Office !
Protection of “non-traditional” trademarks is now available in France
First measures of the EU Trademark Package’s French transposition are in force since last December 11th.
Then, it is henceforth possible to file (and logically to obtain registration) of French trademarks considered as “non-traditional”, insofar as deprived of any graphic representation.
In theory, it can be sound, olfactory or gustatory trademarks, for instance.
Before considering the difficult task to surround protection of a trademark only constituted of a smell or a taste, the French Trademark Office just published for the first time a sound trademark (French Tm application No. 4610154).
If the sound is described as “Or-ion is a sound that increases the vibratory rate of any material and it is an energetic harmonizer” (!), this is only the tone available through the MP3 file that shall benefit of a protection if the trademark successfully passes current registration procedure.
It has to be noted that the trademark is filed in class 9 for “sound transmitting apparatus; sound reproduction apparatus; protection devices for personal use against accidents”.
Several observations can already be made as regards such trademarks:
- is a sound really perceived as an indicator of the trade origin by consumers?
- what shall be the level of genuine use required for this type of marks? and how to demonstrate it?
- how to proceed with an efficient comparison for sound trademarks (as well as olfactory or gustatory ones) as part of opposition or counterfeiting procedures, while traditional criteria (visual and conceptual, notably) are inapplicable? How to insure to owners of such trademarks the existence of efficient criteria, able to determine their distinctive, dominant or descriptive elements?
It has however to be noted that copyrights have not been recognized as opposable prior rights as part of opposition or cancellation procedures managed by the French Trademark Office. In consequence, first litigations as regards such “non-traditional” French trademarks shall probably concern French Courts, which are duly allowed to receive plaint based on prior copyrights.
During next few years, the French Trademark Office and French Courts shall reply to these first interrogations, however without any trend settled by the European case law, despite the fact that “non-traditional” EU trademarks are allowed from several years now.
Before the development of a doctrine on these specific points, we shall firstly follow if this first French sound trademark duly reaches registration.
Do not hesitate to consult us, we are available to assist you for the filing of these new types of trademarks.
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Quian YANG Juriste spécialisé en PI |
Soazig THEMOIN |