In continuation of the terrible terror attack on the French satirical magazine Charlie Hebdo, social medias were flooded with the phrase “Je suis Charlie” (“I am Charlie”) as a message of condolence, outrage and defiance, as well as support for the right to free expression.
As expected, this social media wave resulted in a vast amount of speculative trademark applications being filed for the phrase around the world, as well as registrations of domain names under .fr, .com, .org, and .co.uk.
The need for applicants to exploit a tragic event is not a new trend. As recent examples, trademark applications were also filed for the Malaysian Airlines flight numbers “MH.17” and “MH.30” in continuation of the plane crashes in 2014, and the phrase “I can’t breathe” was filed as a US trademark after the highly debated death of Eric Garner caused by a police officer.
Now, it appears that OHIM has finally had enough, as on 16 January 2015, they issued a statement saying that they normally do not comment on individual cases, but that the registration of “Je suis Charlie” could be considered to be of overriding public interest. Furthermore, OHIM found that the mark could be contrary to public policy or to accepted principles of morality and thus be denied registration with reference to article 7(1)(f) of the Community Trademark Regulation. OHIM also found the mark to possibly be viewed as devoid of distinctive character.
The aim of this statement seems to be to limit the interest in speculative trademark applications aiming at capitalizing on current trends in the media picture. OHIM simply points out that such may be rejected on absolute grounds.
But even though the intention from OHIM is understandable, and speculative trademark applications should be prevented, one cannot help but wonder in what way “Je suis Charlie” is contrary to principles of morality. The mark is neither offensive nor vulgar. There is little doubt that the problem with this phrase and prior similar applications is not the marks themselves, but the identity of the applicants, who has no connection with Charlie Hebdo, Malaysian Airlines or Eric Garner. However, the relevant article 7(1)(f) relates only to the mark itself and not the name of the applicant. Consequently, the above statement from OHIM indicates an expansion of article 7(1)(f), which might be difficult to interpret going forward. Because is it only Charlie Hebdo who will be able to obtain a registration for this phrase, or will non-profit organizations against terror or for the right to free expression also be able do to so? And what happens if an original, non-offensive phrase which refers to a tragic event is filed before it becomes well-known through social media?
In my opinion, a better option for OHIM would have been to do like the French IP office did with 50 applications for the same phrase, and simply reject these applications for “Je suis Charlie” due to lack of distinctive character, and the fact that this slogan now belongs to the public. The phrase will hardly function as an indication of origin for any product or any person not in some way connected to the magazine of Charlie Hebdo.
Anders Michael Poulsen, Attorney at Law, LL.M.
