Industrial Property Law

It is traditionally considered that the owner's right to his trademark is a right of use, and not a right of creation. It is acquired by the first applicant, without any requirement that the registered sign be original or new , or that it demonstrate a creative effort . Any sign may constitute a trademark, even if it belongs to the public domain, as long as it meets the conditions of form and dist …

Right of use

It is traditionally considered that the owner's right to his trademark is a right of use, and not a right of creation. It is acquired by the first applicant, without any requirement that the registered sign be original or new , or that it demonstrate a creative effort . Any sign may constitute a trademark, even if it belongs to the public domain, as long as it meets the conditions of form and distinctiveness required by Articles L. 711-1 et seq. of the Intellectual Property Code . In effect, it is sufficient that the sign is arbitrary for the goods and services that it designates and allows the identification of their origin . 

By filing to register a trademark, the owner obtains the right to prevent certain uses of his mark by competitors. This right is sometimes considered by the courts as a property right of the owner over his or her sign for the goods and services designated in the application, and the use of the trademark without the owner's authorization thus constitutes an infringement of that property right .  However, some commentators consider that a trademark, being an intellectual property, can certainly be appropriated, but that it is above all a creative activity, even if novelty is not required, as is the case for a literary work or a design or model. In the case of a trademark, the condition of distinctiveness would serve the same function. The trademark must not, however, constitute an element hindering free competition by allowing a single economic operator to appropriate signs directly related to the designated products and services that are useful to all economic operators .

CA Paris, 12 May 2015, LawLex201500000597JBJ.

CA Paris, 6 June 1991, LawLex202100005360JBJ.

CA Paris, 9 March 2018, LawLex202100005953JBJ.

CA Paris, 12 May 2015, LawLex201500000597JBJ; CA Paris, 18 January 2012, LawLex202100005283JBJ.

CA Paris, 19 May 1993, LawLex202100005393JBJ.

CA Bordeaux, 13 February 2024, LawLex202400001548JBJ.

Industrial Property Law

26. Right of use

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Les notions juridiques connexes

26. Right of use

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise