Trade mark protection for national emblems

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A decision of the General Court has confirmed the significant protection that will be afforded to international and national emblems.

Article 7 of the Community Trade Mark Regulation (the Regulation) [1] lists the absolute grounds for refusal of a Community Trade Mark application. These include at Article 7(1)(h): “trade marks which have not been authorised by the competent authorities and are to be refused pursuant to Article 6ter of the Paris Convention” [2] and, at Article 7(1)(i): “trade marks which include badges, emblems or escutcheons other than those covered by Article 6ter of the Paris Convention and which are of particular public interest, unless the consent of the competent authority to their registration has been given”.

The purpose of Article 6ter of the Paris Convention (the Convention) is to protect the armorial bearings, flags and other State emblems of the signatory nations. The Convention gives broad protection to national emblems which contrasts with the protection afforded to trade marks; for example, there is no requirement to show a likelihood of confusion under the Convention.

In Case T 3/12, ‘MEMBER OF €e euro experts’, the mark in issue was a figurative mark (reproduced below [3]) which was registered as a Community Trade Mark. The applicant for cancellation sought to annul the mark based on Article 7(1)(i) of the Regulation. The Cancellation Division rejected the application as the mark was not identical to the Euro symbol. The Board of Appeal overturned that decision, finding the differences from the Euro symbol to be so slight as to be imperceptible and that the public might well believe that there was a connection between the proprietor of the mark and EU institutions. The additional elements to the mark, for example the colour or the link to the letter ‘e’, did not detract from that finding; rather, they gave an additional credence to the notion of an association with the activities of the EU. The proprietor appealed to the General Court.

The General Court dismissed the appeal. It found that the Euro symbol was an emblem of particular public interest within the meaning of Article 7(1)(i) of the Regulation. It was not excluded from protection simply because it was a currency symbol, nor was it material that not all EU Member States had adopted the Euro as their currency. The Court clarified that it was not only identical reproductions of the emblem that were barred from registration under Article 7(1)(i) of the Regulation but also imitations of that symbol, which is parallel to the level of protection afforded under Article 7(1)(h) of the Regulation and Article 6ter of the Convention.

The Court went on to confirm that the differences between the mark in issue and the Euro symbol were unlikely to be perceived by the average consumer – and it was the average consumer whose perception mattered, not a heraldic expert. Further, again upholding the Board of Appeal decision, the public could well believe that the mark in issue had been officially recognised and approved by the EU institutions.

Cases under Article 7(1)(i) of the Regulation do not often arise and so this decision of the General Court serves as a useful reminder of the levels of protection afforded to State emblems.

[1] Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (207/2009/EC)
[2] The Paris Convention for the Protection of Industrial Property

[3]Euro logo