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.
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:
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.
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).
See also: sign, revocation for genericide, French trademark registration.