Création D'une Marque En France (document en anglais)

In an Economy based on the brand strategy, the creation of a trademark is essential. Every signs has to be reflected and have a signification for the owner. The aim is to convince the consumer thanks to a name, a sound, a picture before they discover the product itself.

In order to be partial, to let everybody a chance to create the brand etc. France and every country create a regulation process. Each process of creation is mastered by laws.

In a first part , we will talk about the process of creating a brand in France and in second part we will explain the international process and conventions.

A Process of creating a brand in France

The process of obtaining a trademark in France is regulated and registered by the INPI (the National Institute of the Industrial Property). In order to create a brand, the company has to respect lots of specifications.To make a trademark, the conditions of validity are:

• The trademark must be distinctive

• The trademark must be lawful

• The trademark must be available

The brand must have a distinctive sign. There is several kind of brand.

Firstly, there is the “brand name” strategy. It could be a common word but its word has to be different from the products designated. It could be a combination of words such as a slogan, a name, an adjective; a symbol with a signification or not; a family name of the applicant or of another person given the authorization or also a geographic name but the designation of origin (AOC) are forbidden. Each choice has to be reflected and has to be handled with care. Any choice of brand must avoid confusion.

Then, the second type of brand is the “sound trademark”.

The sound mark is a distinctive sign composed of sounds or musical phrases. It is especially useful for radio, television and Internet the deposit is a musical stave.

In addition there is the “figurative mark”. It consists of a design, a label, a relief or a hologram, a logo; a computer graphics, the particular form of the product, the specific packaging of the product, forms characterizing a service, combinations of colors with particular nuances. Today, the figurative mark also has the option to be in 2D or 3D.

The shape and packaging of the product, when it represents the

brand, must be arbitrary,and not having a link with the nature of the product or function in order to maintain the right to competition.

That’s why, characteristics of the product must be protected by patents and not by trademark law .

Finally, there is the “complex brand”. It associates several elements: name element and/or sound element and/or figurative element. The combination cannot be protected separately and constitute one trademark.

It is important to know the rights on the distinctive signs are exclusive rights which ensure the monopoly. The mark is protected by laws on counterfeit and the tradename and the names are protected by the action for unfair competition or parasitic.

This distinctive signs are subject to the principle of specificity; which means the brand is registered as a sphere of specific activity. Thus, some products of different domain can have the same trademark.

Moreover, the distinctive signs are subjected to the territoriality principle. The rights on the sign are only for the country where the brand is registered.

Therefore, as we said before, the brand has to be distinctive. The choice of the sign must allow the consumers to identify the products or services among the competitors’ products. This sign cannot commonly used for product and cannot simply describe the product.

The INPI appreciate the distinctive characteristic.

In a second hand, the trademark has to be available. The brand cannot already exist. Also, it should not be any confusion for customers and users. Thus a sign which looks like or imitate another is forbidden unless the sign is used in another activity.

The applicant must do the research to see if the brand is free. But the INPI may refuse to register a procedure opposition. The opposition proceedings may be initiated by owners of the earlier trademark.

On the web, the domain name, which was considered as a simple address, is now considered like a distinctive sign for the identification of the website .

Finally, the trademark has to be lawful.

The sign must be chosen as a sign marks allowed; therefore it should not be prohibited by the Convention of Paris Union or by the agreements on the WTO (World Trade Organization). By example, it should not take official names, the State emblems, etc.. The sign must be chosen according to public order and good manners. In addition, the chosen sign must not cause a lie. Its use should not generate in the minds of the public deception or

misleading advertising.

After finding the brand and the distinctive sign, each company has to follow a process in France for the registration.

Firstly, the company or the applicant makes the filing of the application for registration to an organism empowered: the “INPI”, the Registry of the Commercial Court in his home or the Tribunal High Court.

Then, the INPI conducts a form examination. If this application is admissible in its form (complete information forms), the deposit is published within six weeks in the Official Gazette of the Property Intellectual (BOPI). The date of this publication is the beginning of the potential opposition’s period.

Afterwards, the INPI establish a full exam based on the conditions of funding. The decision has to be announced within 4 months. It is possible to have negotiations and corrections. If the decision is a rejection, there may be appeal to a specialized appeals court.

If the application is accepted, the mark is the subject of a registration of the brand in the “BOPI” review.

The right of the brand was born the day the application was filed for a life of ten years which are renewable indefinitely. The owner of the mark must carry out the formalities for renewal six months before the expiry of the right to make and pay new tax .

As we said before, the protection lasts 10 years but can be renewed. When the owner of the brand intends to change its brand in a renewal period or expand the range of goods or services covered by the sign,

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