Absolute grounds for refusal

Absolute grounds for refusal (motifs absolus de refus) are the intrinsic defects of a sign that prevent it from being registered as a trademark — the flaws in the mark itself, independent of anyone else’s earlier rights. They are examined ex officio by the INPI or the EUIPO: the office can reject an application on these grounds with no third party lifting a finger.

What the grounds are

Article L.711-2 of the Intellectual Property Code sets them out. In substance, a sign cannot be registered if it is:

• devoid of distinctive character — it does not let the public identify a commercial source;
• descriptive — it consists exclusively of terms designating a characteristic of the goods or services (kind, quality, quantity, purpose, value, geographic origin, time of production);
• customary or generic — it has become the usual designation in ordinary language or trade;
• a functional or value-conferring shape;
• deceptive — liable to mislead the public (see revocation for deceptiveness);
• contrary to public policy or prohibited (protected emblems, etc.);
• or filed in bad faith.

The policy is twofold: keep generic and descriptive terms free for all competitors, and keep the register populated only with signs that can actually function as marks.

The comparison with US practice

Absolute grounds are the structural equivalent of a USPTO examining attorney’s refusal, as opposed to an inter partes dispute. The descriptiveness bar tracks Section 2(e)(1); functionality tracks Section 2(e)(5); deceptiveness echoes Section 2(a); the flag and insignia prohibitions echo Section 2(b). One caution for US counsel: the US “immoral or scandalous” and “disparaging” bars have been narrowed by the Supreme Court, whereas the French/EU “public policy and accepted principles of morality” ground remains in force — the moral filters are not aligned.

The decisive difference lies elsewhere, though: the INPI and EUIPO examine only these absolute grounds ex officio. Unlike a Section 2(d) review, they do not cite earlier marks against an application; conflicts with prior rights (relative grounds) are left entirely to oppositions and invalidity actions.

The second chance: acquired distinctiveness

A sign refused for lack of distinctiveness or for descriptiveness is not always lost. It can sometimes be saved by proving acquired distinctiveness through use — the French counterpart of Section 2(f) secondary meaning. There is no supplemental register in France or the EU; use is the only route back.

A concrete example

A US company wanting to register “FRESH” for bottled water in France would face an absolute-grounds refusal: the word merely describes a quality of the product. The same word for, say, financial software might well be distinctive — absolute grounds are always assessed relative to the goods and services claimed.

Where you will meet this term

This is the ex officio side of validity, developed in depth under absolute grounds of refusal; its mirror image is third-party rights (relative grounds). Anticipating these grounds is central to choosing a trademark and to French or EU filing strategy. See also distinctive character and acquired distinctiveness.

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