Paris Convention invoked in battle for La Republique

A political dispute is brewing in France, into which that grand old dame of IP treaties, the Paris Convention of 1883, has surprisingly been drawn. The IPKat was alerted to this story by Katfriend Daniel Thomas. Daniel is better known to readers as an authority on EPO case law than as a political correspondent, but the IPKat greatly welcomes his foray into la politique.

Nice photo of M. Sarkozy, who presumably is saying "If I
can't lead la République, I can at least lead Les Républicains"

He tells us that Le Monde reports on a court case arising from a proposed name change for UMP, the political party of Nicolas Sarkozy. UMP (the current name is an acronym for Union pour un mouvement populaire, or Union for a Popular Movement) has resolved to rename itself "Les Républicains", i.e. the republicans, in response to which other citizens of la République française have taken not only umbrage but also legal action.

Daniel translates from the Le Monde article, in which the Paris Convention aspect is mentioned without being explained, or at least not to the level of detail demanded by the IP-savvy readers of a blog such as this:

Several organizations and elected members of the left have, on Friday, May 15, filed a claim in court to urgently examine the legality of the use of  the "Republicans" to replace the "Union for a Popular Movement" (UMP). This name change has been criticized on the left, as well as having caused some reservations on the right. The name change is desired by Nicolas Sarkozy and will be submitted to the vote of the party members on 28 and 29 May. The political bureau of the UMP had adopted the new name on 6 May almost unanimously. The claimants are of the opinion that "No portion of the people can claim the exclusive use of the concept of République". The request is filed by the group "We are Republicans." It is supported by the National Federation of Socialist and Republican elected people, the Republican and Citizens' Movement (MRC) of Jean-Pierre Chevènement and by socialist leaders Jean-Louis Bianco and Christian Sautter. It will be discussed by the Court of First Instance of Paris on May 22. The group considers that the use of that designation is "manifestly unlawful", according to Mr. Christophe Lèguevaques, denouncing a "violation of the Constitution and the 1883 Paris Convention for the Protection of Industrial Property, which regulates  the use of trademarks and patents. Its request is filed against the UMP and the communications agency  Aubert & Storch, who designed the logo. , "No part of the French people can claim exclusive use", of this name say the lawyers of the collective.

The IPKat, who will defer to almost anyone when it comes to French constitutional law, will leave that part of the objection to one side. He wonders, however, what the basis might specifically be for the alleged Paris Convention violation. Is it, he wonders, the prohibition in Article 6ter concerning state emblems, official hallmarks and emblems of intergovernmental organisations? Article 6ter reads, in relevant part:

(1)    (a) The countries of the Union agree to ... prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view.

French State emblem

Accepting that La République is an accepted shorthand for the nation state of France, and that the country’s official name is the République française, does this name fall within the scope of Article 6ter? The prohibition is on the use of “armorial bearings, flags, and other State emblems” or of “official signs and hallmarks indicating control and warranty adopted by [a country]”. France has a State emblem, illustrated right, as well as its famous tricolour flag, but nothing in Article 6ter mentions a country's name, or any shorthand for that name.

Professor Bodenhausen, in his 1969 Guide to the Application of the Paris Convention for the Protection of Industrial Property commented:

The objective of the provision under consideration [Art. 6ter 1(a)] is to exclude the registration and use of trademarks which are identical or present a certain similarity to State emblems. an expression which, in view of the word "other," includes armorial bearings and flags of the State concerned. The reasons for this are that such registration or use would violate the right of the State to control the use of symbols of its sovereignty and furthermore might mislead the public with respect to the origin of goods to which such marks would be applied. It was the intention of the Revision Conference of The Hague in 1925 to include also in the protection of State emblems the escutcheons of reigning Houses, as well as emblems of States included in a Federation which was a member of the Union. Not included, however, are emblems of lower public bodies, such as provinces or municipalities, of member States. Whether in these conditions an emblem is a State emblem will be determined by the authorities of the country in which its protection is claimed.

The IPKat can't help feeling that if this provision had been intended to cover the name of a country, then presumably it would have said so. This seems to be especially the case when the immediately succeeding paragraph of the Article, extends similar protection "equally to armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations". The fact that the names of IGOs are specifically covered while the Article is silent on the names and abbreviations of countries, must surely mean something.

But perhaps the objection is based on Article 6bis which governs the registration and use of well-known marks:

(1)    The countries of the Union undertake ... at the request of an interested party, ... to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well-known mark or an imitation liable to create confusion therewith.

This too has its difficulties. The provision applies to trademarks, and prohibits their use if they reproduce or imitate a “well known ... mark of a person entitled to the benefits of this Convention”. It seems a stretch to describe the name (or nickname) of a country as a "trademark" at all, or of being the well known mark of any natural or legal person (these being the persons entitled to the benefits of the Paris Convention under Articles 2 and 3). No doubt one might argue that the name of a country is the common property of every citizen, but is it the well known trademark of each such citizen? And Article 6bis seems to be a provision of private law, governing the disputes between competing persons and companies, rather than a public law provision in the nature of Article 6ter.

In any event, we may not have long to wait to find out. The article says that the case is due to be heard this Friday in the Court of First Instance in Paris (where else?), and the IPKat hopes that some kind French readers will fill him in on how the Paris Convention angle is argued, and how it is decided.