Brand, Appellation, Made in France, Label…
Protecting and promoting heritage and know-how
Where and what to sell, with what brand image?
Logos, graphic charter, store scenography, packaging are all tools to create the image of the company, the service or the product.
The legal tools at the service of this image make it possible both to signify the quality of the product and to protect this image against usurpation, these are essentially trademarks, designs and models and signs of quality.
A trademark is a registered distinctive sign designating services or products.
It is a name or a design, a sound… under which these products and services will be distributed.
One can choose as a mark any normal sign that is not already taken.
The mark makes it possible to certify that such a product which bears a mark comes from such a company, owner of this mark.
If the product or service is successful, the brand will gain in reputation, and the products sold under this brand will sell more easily.
The heritage brand
The heritage brand is a brand that obeys the classic trademark system and that refers to the heritage and history of a country. It can be cultural, architectural, territorial, artisanal and industrial heritage.
It is a name that has a story that inserts itself into the history of this country.
The heritage brand is therefore made up of a name that is both prestigious in the country in question and with which an already old story is associated. Its holder promotes it by referring to this ancient story.
For example, the “Michelin” brand in France.
Other prestigious or widespread brands do not refer to an ancient story but to other values such as the values of sport or innovation, for example the brand “Nike”.
Heritage brands are therefore not necessarily suitable for all types of products.
They seem suitable for the luxury sector or for the wine sector (the heritage brand is not depreciable there) and food.
They may possibly come up against indications of source (appellations and indications of origin), but in principle their anteriority prevails.
The heritage brand has great value because the products that carry it will sell easier and faster.
Hence the interest for the holder of the mark to protect this mark and to associate it with quality products.
It is a type of trademark with certain characteristics but which obeys the classic and general regime of trademarks in terms of filing, ownership, validity, forfeiture.
The notion of notoriety is however attached to this type of brand: advantages:
The “notorious” mark can do without a trademark registration and relates to specific products or services.
The “reputation” mark is a registered mark but can be opposed to those who would like to use it to cover goods and services other than those designated on registration, contrary to the principle of specialty which limits the mark to products and services named in the registration.
For example, Coca Cola on sodas can defend itself against a similar mark on shoes.
In a recent judgment, Com. June 22, 2022, FD, n° 20-19.025, the Court of Cassation limits the effects of reputation: this cannot exclude the use of the surname (Taittinger case).
“Because you are worth it” from L'Oréal.
The slogan illustrates the brand, gives it meaning. Can it be protected as a trademark when it is a simple combination of common words? Yes, provided that the criterion of distinctiveness is respected, making it possible to avoid confusion with the signs and products of competitors, and that they can effectively designate a company, beyond the simple advertising effect.
See Article L. 711-1 of the Intellectual Property Code and Article 4 of Regulation No.oh 207/2009 on the community mark.
Three-dimensional representations of the shape or packaging of products, colors, animated sequences, sounds or smells serve as original marks.
the Singapore Treaty on the Law of Trademarks, which entered into force on March 16, 2009, establishes a multilateral framework for the definition of criteria relating to the reproduction of hologram, movement, color or position marks or marks consisting of signs not visible in trademark applications and registers.
Trib. EU, 4 May 2022, Deichmann SE v. EUIPO – Munich SL, case. T-117/21:
The distinctive character of position marks in the field of sports shoes must be examined with regard to the average consumer, but in the absence of certainty, it may be presumed, in particular with regard to the existence of similar marks. Thus, unless the lack of distinctiveness is expressly demonstrated, the mark cannot be canceled.
Trademarks are to be distinguished from domain names in that the latter serve primarily to designate a website address or internet service and not products or services.
The reservation of a domain name is therefore not equivalent to obtaining a trademark right.
The domain name can be registered as a trademark to designate certain products and services (suitable in particular with regard to the distribution of computer products or services), and one can be deprived of a domain name that would offend a trademark right.
designs and models
Designs are used to protect a design or a model applied to a product.
They make it possible to shape a product.
They do not in themselves guarantee any quality or origin but allow a particular style to be given to a product (clothing, car, etc.), and a company to retain this style.
SIQOs (signs of quality and origin)
Unlike trademarks, SIQOs are not signs that an operator arbitrarily assigns to itself, but can be claimed by several operators under conditions of quality and origin, and precisely to allow these operators to certify the origin. or the quality of their products to the consumer.
They are created through complex administrative approval procedures, and operators wishing to take advantage of them are controlled by certifying bodies under the aegis, in France, of the INAO, for the food industry, and the INPI for industrial and artisanal products.
These official signs benefit from the assistance of administrative authorities (in particular INAO, DGCCRF) and defense organizations for their control, at national and European level, and at international level, with no particular time limit.
These organizations can in particular oppose trademarks, with an international influence and action on the basis of international agreements and reciprocity.
In litigation, when feasible, the legal basis is that
– unfair competition (civil liability)
– intellectual property when the designation is the subject of a collective or certification mark,
– specific texts applicable to PDOs, PGIs, etc. (European texts, rural code)
– misleading practices (consumer law)
A distinction is made between European signs and national signs, for agri-food products or industrial and artisanal products.
For the food industry including wines:
We note in particular: protected/controlled designations of origin, protected indications of origin, red label, traditional specialty guaranteed (TSG), organic farming (AB).
European signs: IGP (Protected Geographical Indication) and AOP (Protected Designation of Origin)
PGIs make it possible to indicate that an agricultural product comes from or has links with a particular region or place, PDO designating a stronger link, and the term attached “PGI” or “PDO” (with the official logo) means that this indication has been verified. It is a label of quality and origin meeting specifications and controlled by an approved body.
STG (“Traditional Specialty Guaranteed”), AB (“Organic Agriculture”) and label rouge are more centered on know-how than on a territory of origin.
In particular STG for recipes, excluding cooking recipes.
Unlike a standard quality label or mark, PDOs and PGIs are subject to their own legal regime, with the support and monitoring of dedicated public administrative authorities: in particular the INAO (National Institute of Origin and Quality) and the DGCCRF (Direction Générale de la Concurrence, Consumption et de la Repression des Frauds).
The delimited geographical areas, or even the parceled areas for certain PDOs, can also benefit from protection against any operation of development, town planning, equipment, construction, exploitation of the soil or subsoil or establishment of any economic activity likely to harm the production area or conditions, the quality or the image of the PDO or PGI product.
National signs (France): AOC and IGP (Appellation d'Origine Contrôlée, Protected Geographical Indication)
The national signs are the national variation of the European signs, in particular AOC for the wines of France.
Industrial and artisanal products: Geographical indications: the example of Marseille soap
To benefit from a geographical indication, the conditions of production or processing of the product must comply with specifications approved by decision of the Director General of the INPI, according to Articles L. 721-2 and L. 721-7 of the Code. intellectual property.
These specifications must specify the delimitation of the geographical area or of the specific place associated with the geographical indication, to which a specific quality, reputation or other characteristics of this product can essentially be attributed.
The INPI ensures in particular that the perimeter of the zone or place makes it possible to guarantee that the characteristics of the product can effectively be attributed to the geographical zone associated with the geographical indication (article L. 721-3, al. 4 of the intellectual property code).
Court of Cassation, ch. com., March 16, 2022, 19-25.123
Soap Association of Marseille France c. INPI
(Rejection of appeal v. CA Paris, pole 5, 2nd ch., Nov. 22, 2019, 18/15257; The specifications must show a link between the name and the claimed geographical origin. The geographical indication cannot serve to protect know-how over a wider territory than that from which it originally originated.
AB “Organic farming”: quality linked to the environment
European regulations and its “AB” label make it possible to identify products from organic farming.
Accompanied by the “AB” brand, they guarantee a production method that respects the environment and animal welfare. The rules governing the organic production method are the same throughout Europe, and imported products are subject to equivalent requirements.
Label rouge: promoting superior quality
The Red Label (LR) is awarded to foodstuffs or unprocessed agricultural products that have specific characteristics.
Thanks to special production or manufacturing conditions, brought together in specifications, the labeled products offer a higher level of quality. The Label Rouge is a French sign but it does not exist only in France (prawns from Madagascar, Scottish salmon…). Examples: Label Rouge free-range lamb, Label Rouge Christmas trees, etc.
Industrial and artisanal products: Made in France
Companies can indicate the French origin of their products as "Made in France" or "Made in France", in compliance with customs rules.
This indication is optional: no provision provides for the obligation to affix an origin marking, except for certain agricultural or food products within the framework of health regulations.
To bear the mention of France origin, it is necessary to comply with European rules on “non-preferential origin”: the manufacturer can indicate as the origin of the product the one where the last substantial transformation took place.
- Articles 22 to 26 of regulation 2913/92 (pdf – 334 ko) of October 12, 1992
- articles 35 to 65 and annexes 9 to 11 of the regulation 2454/93 July 2, 1993
Article 39 of the Customs Code punishes disputed statements that may lead the consumer to believe that a product of third origin is of French origin when it does not meet the rules of non-preferential origin.
“1. Are prohibited on entry, excluded from the warehouse, transit and circulation, all foreign products, natural or manufactured, bearing either on themselves or on packaging, boxes, bales, envelopes, bands or labels, etc., a brand of products or services, a name, a sign or any indication likely to lead people to believe that they were made in France or that they are of French origin.
- This provision also applies to foreign products, manufactured or natural, obtained in a locality with the same name as a French locality, which do not bear, at the same time as the name of this locality, the name of the country of origin and the mention “Imported”, in clearly visible characters”
This notion of the origin of the goods is to be distinguished from the “Origine France Garantie” label, which is awarded by an independent organization and obeys specific specifications.
Obtaining this label allows companies that choose to do so to promote their national production.
In concrete terms, to obtain this label, the manufactured product must meet the following two criteria:
- the place where the product takes on its essential characteristics is located in France
- 50% at least of the unit cost price is acquired in France
Downloadable product rating applications on smartphones are developing. They provide the consumer with quick and practical insight into the product, before the act of purchase.
However, they regularly raise questions of unfair competition, deceptive practices with regard to consumers (articles L. 121-1 et seq. of the Consumer Code) and denigration of companies that are victims of poor ratings.
Thus the Yuka company, for its eponymous application, was condemned for having mentioned that nitrates are carcinogenic (T. com. Paris, May 25, 2021, No. 2021001119, Fed. of charcuterie manufacturers c/ YukaT. com Aix-en-Provence, September 13, 2021, No. 2021F004507)
The difficulty is that this type of application can have a real denigrating effect for such and such a company whose products nevertheless comply with the regulations.
Beyond the denigrating effect, the application can generate a panic effect among populations and generate out of proportion behavior.