- Representability:
To be registered, the trademark must first be capable of being represented in the national trademark register, that is, it must be accessible and intelligible so that third parties can determine precisely and clearly the subject matter of the protection. For example, a drawing, logo, sound, or video file are acceptable formats.
- Distinctiveness:
The trademark must then be distinctive in relation to the goods and services it designates. That is to say, it must not be descriptive, generic, customary, or designate a characteristic of the product or service (e.g., “Pure Laine”, which means pure wool, for a wool carpet).
This criterion responds to one of the main functions of the trademark, among which is the essential function of guaranteeing to the consumer the identity of the product or service’s origin to distinguish them without confusion from others.
However, a trademark does not have to be original.
- Lawfulness:
A trademark must be legal, and then it must not be misleading as to the quality, nature, or origin of the goods and services, et not be contrary to public policy and morality (such as a racist expression).
- Availability:
Finally, the trademark must be available,i.e., it must not infringe on other prior rights: registered or well-known trademarks, personality rights, copyrights, company names, domain names, etc. It is therefore imperative to carry out a prior art search to check that the trademark does not imitate or resemble another. The risk is that a third party could oppose the registration, or later launch an action for unfair competition or infringement.
In France, it is necessary to file a registration with the National Institute of Intellectual Property (INPI) to obtain a trademark registration and benefit from protection.
