La moralité de ‘Je suis Charlie’

This article reviews a recent announcement by the Office for Harmonization in the Internal Market regarding trademark applications for the phrase ‘Je suis Charlie’.

26 January 2015

The phrase ‘Je suis Charlie’ became one of the most popular twitter hashtags in history following the attacks on the offices of Charlie Hebdo, a French satirical magazine. Nearly 6,500 tweets were sent per minute containing the phrase first coined by artist Joachim Roncin and which has come to symbolise freedom of speech and freedom of the press. However, there have also been several attempts to register the phrase as a trademark. Applications have been submitted in the US, Australia, France and the Benelux region (comprising Belgium, the Netherlands and Luxembourg). In light of these, the Office for Harmonization in the Internal Market (OHIM)- the body which approves applications for community trademarks- issued a statement of intent regarding applications for the phrase. This article reviews the fairly unusual step taken by OHIM of making such a statement and discusses similar applications.

The OHIM announcement begins by noting that individual applications will not generally be commented upon. However it states that the intellectual property issues surrounding ‘Je suis Charlie’ applications “could be considered to be of overriding public interest.” The announcement also states that such applications would likely be subject to objections under the European Trademark Directive for lack of distinctiveness and for contravening public policy or accepted principles of morality.

These are not the first applications which could be challenged for reasons of public morality. In the summer of 2014 applications were made to register the letters MH17 and MH370 as Community trademarks. These were the flight numbers of two Malaysian airlines jets, the first of which was shot down in Ukraine and the second of which vanished over the South China Sea. OHIM states that the applications are currently under review.

The detail of OHIM’s statement is interesting. It says that “an application which consisted of or which contained the phrase "Je suis Charlie" would probably be subject to an objection…..due to the fact that the registration of such a trade mark could be considered "contrary to public policy or to accepted principles of morality" and also…as being devoid of distinctive character”.  The essential function of a trademark is that it signifies the product’s origin to consumers. Therefore, it needs to be capable of distinguishing the goods or services of one company from those produced by another. As a result, distinctiveness is reviewed by reference to the category of goods applied for. For example, the word ‘Apple’ is sufficiently distinctive in relation to technology products but would not be in relation to foodstuffs.   These comments from OHIM on distinctiveness are echoed by the French intellectual property office, which stated that the words were widely used by the community and therefore lacked distinctive character, when refusing fifty applications containing the phrase.

Refusal for lack of distinctiveness may be one way in which IP offices can avoid considering the morality issues surrounding the mark. For example, some say that the phrase itself is not offensive. A final difficulty which could be faced by intellectual property offices relates to the length of time between filing and the event which led to the creation of the phrase. What length of time is needed for a phrase to shake off any immoral connotations? No public policy objections were considered in relation to Twentieth Century Fox’s 1998 application for the word ‘Titanic’, although it could have been a different scenario had the application been made in 1912.

It may be that global intellectual property offices will cite lack of distinctiveness in order to sidestep these difficult considerations of morality.