Glossary
French: caractère distinctif
Distinctive character is one of the validity requirements of a French or EU trademark — the equivalent of the US distinctiveness requirement, and the same underlying policy: to preserve free competition, descriptive terms cannot be monopolized as trademarks.
The requirement is set out in Article L.711-2 of the Intellectual Property Code, which lists the categories of signs considered to lack distinctive character: signs that are necessary, generic or usual for the goods or services concerned, and signs that merely describe a characteristic of the goods or services (their kind, quality, quantity, intended purpose, value, geographic origin, or time of production). The EUIPO applies an equivalent standard under EU trademark law, so the analysis below applies, with only minor variations, to both French and EU filings.
If an applied-for mark lacks distinctiveness, the INPI must refuse it (compare a Section 2(e)(1) descriptiveness refusal from a USPTO examiner). Non-distinctive marks nonetheless sometimes slip through to registration. Since April 1, 2020, the INPI offers an administrative invalidity procedure against registered marks, notably those lacking distinctive character — invalidity can also be sought before the Tribunal judiciaire. Marks cancelled by the INPI for lack of distinctiveness include:
These four cancellations share a common pattern worth noting for US counsel: in each case the sign described the goods or services themselves — a room for love, a light-related product, a counter selling gold, a gauge that is “super” and “pro” — rather than merely alluding to them, which is the hallmark of a descriptiveness problem in both systems.
Distinctiveness is assessed relative to the goods and services, exactly as in US practice: ORTHOSHOP was held invalid for orthopedic shoes but valid for pharmaceuticals (INPI, October 17, 2022, NL 22-0023). An everyday word can be perfectly registrable for unrelated goods. This means a US brand whose mark cleared the USPTO without a Section 2(e)(1) refusal is not automatically safe in France or at the EUIPO if the relevant term happens to translate into, or resemble, a French or other EU-language descriptive word for the goods at issue — a check English-only US counsel can easily overlook.
Distinctiveness is not “originality.” Originality is a French copyright concept, foreign to trademark law. The INPI has expressly rejected arguments that a common word “lacks originality”: a term of everyday language may be registered as a mark if it meets the distinctiveness requirement of the Intellectual Property Code (INPI, March 26, 2024, OP 23-1629).
As under US practice, where a descriptive term can register on a showing of acquired distinctiveness (sometimes loosely called secondary meaning), a sign that was not inherently distinctive can become registrable, or defend an existing registration, if the applicant or owner shows it has acquired distinctive character through use — see acquired distinctiveness. This is a fact-intensive showing and the exception rather than the rule; it will not rescue a sign that remains purely descriptive on its face absent a substantial body of evidence of consumer recognition.
Distinctive character is the first thing to check when choosing a trademark, the most common ground for refusal discussed in French trademark registration and EU trademark registration, and a recurring ground in trademark validity: absolute grounds challenges. See also sign and revocation for genericide, which addresses marks that lose distinctiveness after registration.