Revocation for deceptiveness

Déchéance pour caractère trompeur (roughly day-shay-AHNSS poor ka-rak-TAIR trohm-PUR) — also called revocation for déceptivité (deceptiveness) — targets registered marks likely to mislead the public as to the essential qualities of the goods or services. The nearest US concepts are the Section 2(a) bar on deceptive marks and cancellation of deceptive registrations, but France applies the doctrine both at filing (as an invalidity ground) and to the mark’s later use (as a revocation ground) — a dual application with no exact US parallel, since Section 2(a) primarily polices the mark as filed rather than tracking how a registrant’s actual, evolving use of the mark departs from what the mark promises.

Article L.711-2 of the Intellectual Property Code provides that marks “of such a nature as to deceive the public, in particular as to the nature, quality or geographical origin of the product or service” cannot be validly registered and, if registered, may be declared invalid. Deceptiveness can result either from the mark’s intrinsic character or from its use.

Timing of the assessment

French case law distinguishes sharply: for invalidity, deceptiveness is assessed at the filing date, in view of the goods and services as designated, regardless of how the mark is actually exploited (Cour de cassation, March 15, 2017, POYFERRE); conditions of use only matter for subsequent revocation. This distinction is important for defense strategy: a mark that was perfectly honest as filed can still become deceptive later if the owner changes what the mark is actually used for, and conversely a mark cannot be invalidated for deceptiveness merely because of how one licensee happens to be using it today, if the goods as designated at filing were not inherently misleading.

The underlying test

In both contexts, the touchstone is the perception of the relevant public: would an ordinary consumer, encountering the mark on the goods or services as designated, be misled about a characteristic that matters to the purchasing decision — typically composition, geographic origin, method of production, or a comparable “essential quality”? A merely evocative or suggestive claim is not enough; the mark must create an expectation the goods or services do not fulfill. This is conceptually close to the Section 2(a) inquiry (is the term misdescriptive, is the misdescription material to the purchasing decision, is it likely to affect the decision), but French practice tends to give particular weight to geographic and compositional claims, as the examples below illustrate.

Examples from INPI case law

• The figurative mark L’OIGNON DE TREBONS DOUX & SUCRE was declared partially invalid for jams, soups, prepared dishes and similar goods that had not been limited to products actually containing Trébons onions (INPI, November 10, 2023, NL 23-0020) — a scenario echoing US geographic deceptiveness; see also place names as trademarks. The lesson for drafting is that a geographic or ingredient-specific term in a mark should be matched by a correspondingly limited goods description, not a broad, unqualified one.
• LE BOUCHER VÉGÉTARIEN (“the vegetarian butcher,” logo) was held deceptive notably for textured vegetable proteins used as meat substitutes: the word “BOUCHER” creates expectations of butcher’s goods that “VÉGÉTARIEN” and carrot imagery do not dispel (INPI, March 18, 2024, NL 23-0089). This decision is a useful illustration for US food and beverage clients entering the French market with plant-based branding that borrows the vocabulary of the animal-based category it is positioned to replace.

Where you will meet this term

Deceptiveness surfaces both as a ground of attack in a trademark opposition before the INPI and as a freestanding invalidity or revocation action, and it is a natural check to run during any trademark clearance search for a mark that references geography, composition, or a specific process. See also: trademark revocation, revocation for genericide.

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