Je Suis Charlie, lack of distinctiveness and the freedom of expression
“I disapprove of what you say, but I will defend to the death your right to say it.”
Those were the words of the british writer Evelyn Beatrice Hall, although often wrongly connected with the french writer Voltaire, illustrating the signification of the fundamental right more commonly known as the freedom of expression. A sentence whose meaning, for many people, tragically was transformed into another combination of words earlier this year, namely Je Suis Charlie.
If anyone missed the news on January 15 this year (2015), a ruthless attack against the satire magazine Charlie Hebdo resulted in a tragedy which engaged millions of people around the world. The slogan Je Suis Charlie was created by a journalist which soon became a symbol used on social networks by countless of people. A slogan which many people now connect with compassion for the tragedy and the importance to ensure that the fundamental right the freedom of expression will maintain inviolate.
A slogan for the right for you and I to express our opinions.
This inevitably important law-stated right is though not the central object of today´s article. Today´s article concerns the fact that many actors around the globe have been trying to register the slogan Je Suis Charlie as a trademark for certain goods and/or services to use commercially. Therefore the central topic of today instead is what can be registered as a trademark.
The OHIM is the official trademark office in the EU which handles the applications from companies which wants to register community trademarks. The OHIM investigates whether there are absolute obstacles to register the certain trademark and one requirement is that the mark has to have distinctiveness. E.g the certain sign/mark must be able to distinguish the products/services of a company from those of other companies, See Article 2 of the Community Directive n°2008/95/CE.
Many companies, not at least in the sector of fashion, have been applying to register the slogan Je Suis Charlie to use commercially – e.g as a print on clothing. But, due to the fact that the slogan has been used widely by the community it is stated that it lacks distinctiveness. This, because the slogan has not been created and used by a commercial actor in relation with certain goods or services and therefore, the public will not associate Je Suis Charlie with anything else than the tragedy of Charlie Hebdo.
If one applies the law on this case, one can say that by using Je Suis Charlie as a trademark for e.g clothing, this trademark would not be able to distinguish these apparel from those of other companies. It would simply be impossible for a company to make the public associate the slogan with their goods, since it already is famous as a symbol for the compassion to the Charlie Hebdo victims and the protection of the freedom of expression.
Due to the many trademark applications for the phrase, the OHIM has also stated that such applications most likely will be objected, not only because of lack of distinctiveness but also because it could be considered as “contrary to public policy or to accepted principles of morality”. This, simply because the slogan will be exclusively associated with the attack against the magazine, in the eyes of the public. The slogan is simply considered to be of overriding public interest which makes a trademark registration impossible.
So now it is clear, that the sentence of Evelyn Beatrice Hall; “I disapprove of what you say, but I will defend to the death your right to say it”, might have been able to be transformed into the slogan Je Suis Charlie. But Je Suis Charlie can never be transformed into a trademark.
Simply – C’est impossible.