The phrase “Je suis Charlie” should be familiar to all readers, following the tragic events that unfolded in Paris on 7 January 2015. It is widely accepted to be the creation of artist and journalist Joachim Roncin and has been adopted by literally millions of people (the hashtag #jesuischarlie was tweeted over 5 million times during the first three days following the massacre) as a beacon of free speech and defiance in the face of hatred and brutality.
Trade mark applications
What has left a sour taste in the mouths of many, though, has been the flurry of applications across the world to register the phrase as a trade mark. By some reports, more than 120 applications have been received by the French Intellectual Property Office (INPI) alone, and applications have been submitted in (at least) Benelux, Germany, Italy, the EU, Australia and the US.
Attempting to commercialise a populist slogan is nothing new. In 2011, at the height of the “Occupy” anti-capitalist demonstrations, two US applications were made for “OCCUPY WALL STREET,” although these were later abandoned. In December 2014, an application was made in the US to register “I CAN’T BREATHE” for articles of clothing, following the popularity of the phrase as part of protests against the death of Eric Garner while he was being arrested. This application is currently under review by the USPTO, although the applicant has received a swathe of negative publicity since filing the application and one might expect her to abandon her efforts, too.
Some of the applications for “JE SUIS CHARLIE” have been withdrawn or rejected, but there are applicants that remain optimistic, bullish even, about their prospects of success. A US applicant has gone so far as to send a cease and desist letter to the offices of Charlie Hebdo. Setting aside all questions of taste, it is unclear on what legal basis the applicant has sent the letter, but this is indicative of the lengths that some are prepared to go to when trying to capitalise on a popular catchphrase.
Registries taking a stand
INPI released a statement on 13 January indicating that it would not register any of the speculative applications that it received or receives for “JE SUIS CHARLIE” or which include a reference to it. INPI justified this stance on the basis that the sign is devoid of distinctive character, particularly as the slogan is used by the public (indeed, much of the world) at large and so does not fulfil the essential characteristic of a trade mark – to distinguish the goods and services of one undertaking from those of another.
At the EU level, the Office for Harmonisation in the Internal Market (OHIM) – soon to be the European Union Intellectual Property Office – has also taken the unusual step of formally stating that applications consisting of or containing “JE SUIS CHARLIE” are likely to be objected to under Article 7(1)(f) Community Trade Mark Regulation (CTMR), which refers to signs considered to be “contrary to public order or accepted principles of morality,” and also Article 7(1)(b) CTMR, which concerns signs that are devoid of distinctive character. The latter ground is arguably the more coherent of the two.
A swiftly generic phrase
One of the apparent reasons underlying these attempts to register, and thereby monopolise, popular slogans and phrases seems to stem from a basic misunderstanding of the nature, scope and purpose of trade marks. Fundamentally, the purpose of a trade mark is to distinguish the goods and services of one entity from those of another. Trade mark rights do not entitle the owner to demand payment from anyone that merely uses a particular phrase. As a starting point, trade mark rights are not infringed by non-trade use and the primary use of the “JE SUIS CHARLIE” phrase is by protesters and sympathisers wishing to demonstrate their solidarity with the employees of Charlie Hebdo and each other.
In addition to this, though, is an apparent desire to commercialise the phrase through (ambush) merchandising activities seeking to capitalise on the popularity of the expression. In this context, the powerful legal argument is that the phrase almost instantly became generic and so devoid of distinctive character, as a result of its phenomenally widespread use on social media and at demonstrations in cities across the world – the phrase, to the extent that it belongs to anybody, belongs to us all. If one sees “JE SUIS CHARLIE” on a T-shirt, mug or trinket, this will not provide the consumer with any indication as to origin of the product in question.
Although “JE SUIS CHARLIE” will not be registered as a trade mark in France or throughout the EU, it remains to be seen whether any other trade mark offices will accept registration of the mark. There is clearly a good chance that a number of applications will be withdrawn by the applicants for fear of ruinously bad publicity, and it seems inevitable that any application that actually proceeds to publication will be subject to numerous objections. For their part however, INPI and OHIM should be applauded for their respective interventions in essentially guiding the hand of any future would-be applicants.