Pattern mark and motion mark

A pattern mark is a trade mark consisting exclusively of a set of elements repeated at regular intervals, such as a chequerboard, a repeated monogram or an interlacing design, affixed to a product or its packaging. A motion mark is a trade mark consisting of a movement or a change in the position of the elements of the sign, accompanied where applicable by sound in the multimedia mark. These categories, which emerged with the abolition of the requirement of graphic representation by Directive (EU) 2015/2436 and Regulation (EU) 2017/1001, fall in French law under Article L. 711-1 of the French Intellectual Property Code.

Representation of these signs

The pattern mark is represented by a reproduction showing the repetition of the pattern, supplemented where applicable by a description specifying its regularity. The motion mark is represented by a video file or by a series of sequential, numbered still images showing the movement or the change of position. The multimedia mark, which combines image and sound, is filed as an audiovisual file. In every case, the representation must enable anyone to determine precisely and clearly the subject matter of protection, which leads the offices to refuse applications whose sequence is incomplete, ambiguous or inconsistent with the accompanying description.

Distinctive character

A repeated pattern is perceived first as a decorative element, and the public sees an indication of origin in it only where it departs significantly from the usual patterns of the sector or has acquired a reputation through use. The best-known patterns in leather goods and fashion have thus been accepted on the basis of distinctiveness acquired through use, whereas a simple grid or an ordinary stripe is refused for lack of distinctive character. The motion mark raises fewer difficulties where it is short, memorable and detached from the function of the product, such as a logo animation when an application opens or a car door opening sequence. The absolute grounds for refusal relating to shape or to another functional characteristic also apply.

Scope and limits of the right

The pattern mark makes it possible to act against the reproduction of the pattern, or of a similar pattern, on identical or similar goods, but it confers no right in the isolated elements of the pattern or in the product bearing it. The same pattern may also be protected by copyright, if it is original, and as a design, if it is new and has individual character, which gives the owner several complementary grounds. The motion mark is infringed by a sequence producing the same overall impression, and its genuine use must be established in the media in which the movement is actually broadcast.

Key points

A repeated pattern or a movement may be filed as a trade mark, provided it is represented by a reproduction, a series of images or a video file that fixes its subject matter precisely, and that it is perceived as an indication of origin. Protection of a decorative pattern rests most often on distinctiveness acquired through use. Combine the trade mark filing with design and copyright protection, and keep evidence of the exploitation of the pattern or sequence.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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