Public morality (bonnes mœurs)

Good morals (bonnes moeurs) are the moral standards commonly accepted in a society at a given time. In intellectual property law, the concept operates as a limit on the grant of exclusive rights. An invention or a sign contrary to good morals or to public policy cannot be protected, whatever its technical or commercial merits.

Good morals and patentability

Under Article L. 611-17 of the French Intellectual Property Code, inventions whose commercial exploitation would be contrary to human dignity, public policy or good morals are not patentable. Such contrariety cannot result from the mere fact that exploitation is prohibited by law or regulation. The rule corresponds to Article 53(a) of the European Patent Convention, applied by the EPO. The following articles set out the exclusions concerning the human body, cloning processes and uses of human embryos.

Good morals and trade mark law

Article L. 711-2 of the same Code excludes from registration signs contrary to public policy or good morals. The ground is absolute. It may be raised by the INPI during examination and by any person in cancellation proceedings. The assessment is made by reference to the perception of a reasonable public, at the filing date, taking the context into account. Vulgar or offensive signs, and signs condoning unlawful conduct, are refused on this basis. The same exclusion exists for the EU trade mark.

Key points

In practice, the good morals exclusion is rarely applied in patent law, where it mainly concerns biotechnology. It arises more often in trade mark law, in connection with provocative filings. In both fields, the assessment evolves with society. The firm advises and litigates on these questions of patentability and trade mark validity.