INPI Keeps Calm and Carries On

This post is inspired by a conversation I've had with @biblioluke, which started with his discovery via The IPKat that someone wanted to register "Je suis Charlie" as a trademark, and ended with us agreeing that "INPI Keeps Calm and Carries On" would just be too good - a blog post title - to miss. So bear with me, I'll explain what happened in between, and add a few thoughts and references.

7th January 2015: attack on freedom of speech at the offices of satirical newspaper Charlie Hebdo in Paris - 12 people killed. As explained in this BBC article, the rallying phrase and logo "Je suis Charlie" was created by Joachim Roncin and quickly adopted by millions of people in France and the rest of the world.

Roncin himself is not claiming any rights over either the phrase or image, saying it belongs to all - i.e. it is in the public domain. The thing with public domain works is that since it belongs to everyone, people are free to also use them in commercial ways. Some tried to gain a commercial advantage by registering the phrase "Je Suis Charlie" as a trademark, which gives a monopoly over the phrase in a particular territory and for particular categories of goods/services. Over 50 applications were received by the French office for industrial property INPI, according to this article by BFM TV [in French]. What interested me in this article is that it said INPI is rejecting those applications on the grounds that the mark is not distinctive (one of the criteria for trademark registration everywhere) since it is largely used by the community, rather than by saying it is immoral or offensive (since another criteria for registration is that the mark cannot be offensive). The IPKat, in the article mentioned at the top, raised the question of whether applications such as these should be rejected on morality grounds, mentioning attempts in the USA to trademark "MH.17" but also "I can't breathe".

Someone in Belgium also applied to register "Je suis Charlie"
as a trademark, before changing their mind

Thankfully, both INPI in France and BOIP in Benelux (see picture above) say they will reject any attempts at trademarking "Je suis Charlie". So really: INPI Kept Calm and Carried On.

Hey, wait a minute! Keep Calm and Carry On - that's also in the public domain, right? In theory, yes: it was created by the British government and "published" (though in a rather confidential way) in 1939 according to this article on the topic, so the Crown copyright on it had long expired (it's 50 years for published works, 125 for non-published ones) when the poster was re-discovered by booksellers in Alnwick, Northumberland. The owners of Barter Books were happy for others to re-use the poster too and everyone was making money from it until... they were stopped because one of their competitors had managed to get an EU-wide trademark over the phrase (the article really is worth reading) But how did that happen when so many people were using it? Surely that meant that, just like "Je suis Charlie", "Keep calm and carry on" is not distinctive?

So if you can't trust your IP office to grant registration to the right kind of stuff, what do you do?

Unfortunately for you, I have recently been reading this very interesting article by Lionel Maurel [in French] which features among other things the Defensive Patent License - basically: you patent stuff so trolls can't have them and you make the patents available to use to a group of people who share your ethos. So before my brains (or yours, if you've had to put the aforementioned article through Google Translate and are now trying to make sense of the result) completely turn to mush, I'd like to ask two more questions: is registration really the best way to protect something from abuse even though it is something that could have belonged to the public domain? Following the examples of "Je suis Charlie" and "Keep calm and carry on", how do you make it work in the field of trademarks? The ALS Association tried to defensively trademark "Ice-bucket challenge" - erm, it didn't work out well for them.

Further reading:

Ledesma, R. (2015). Some Idiot Will Probably Try to Trademark #JeSuisCharlie. It Won't Work. [online] WIRED. Available at: http://www.wired.com/2015/01/do-not-trademark-je-suis-charlie/ [Accessed 14 Jan. 2015].