A judgement issued by the Paris first instance court on 11 March 2010 held that the name of a political party or of an election list could be considered as a kind of prior right that can be invoked against a trade mark.

Article L.711-4 of the French Intellectual Property code states that:

 Signs may not be adopted as marks where they infringe earlier rights, particularly:
       a) An earlier mark that has been registered or that is well known within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property;
       b) The name or style of a company, where there is a risk of confusion in the public mind;
       c) A trade name or signboard known throughout the national territory, where there exists a risk of confusion in the public mind;
       d) A protected appellation of origin;
       e) Authors’ rights;
       f) Rights deriving from a protected industrial design;
       g) The personality rights of another person, particularly his surname, pseudonym or likeness;
       h) The name, image or repute of a local authority.

In the first sentence, the adverb “particularly” clearly indicates that the list of types of prior rights cited in the article is an open list. In the past, French judges have indeed held that under specific conditions the name of an association or an internet domain name could be infringed by a later trade mark.

In the present situation, two ecologist parties (Association Les Verts and Le Rassemblement Pour Une Europe Ecologiste) were acting against French trade mark EUROPE ECOLOGIE, registered in 2004 in the name of an individual.

The prior rights invoked by these green parties over the expression “Europe Ecologie” consisted in the name of lists of coalitions of candidates at the European Parliament elections of June 1979, of June 1984 and of June 1989. The court however noted that there was no evidence of the litigious expression being used afterward by the claimants themselves.

The judgement held that the list of article L.711-4 is not limitative and could therefore also cover the name of a political party or the name of an electoral list, in case of likelihood of confusion. But due to the absence of use of the name invoked by the claimants since 1989, the court refused to apply article L.711-4 to cancel the trademark.

And lack of use was the motto in this case, as this is the reason why the trade mark finally fell.