Glossary
French: disponibilité du signe
The availability of a sign (disponibilité du signe) is the fact, for a distinctive sign, of being free to adopt — that is, of not creating risks of infringement actions, liability, or exposure to damages claims by third parties. It is the exact counterpart of what US counsel evaluates in a clearance opinion: freedom to use and freedom to register.
Availability is evaluated through a prior-rights search (recherche d’antériorité), also called a similarity search. The study examines whether there are prior rights capable of blocking the use or the registration of the contemplated sign.
This is a preliminary step before any trademark filing — whether a French filing, an EU filing or an international filing. It matters all the more in France and the EU because the offices do not examine applications against prior marks ex officio: a French or EU application can sail through examination and register while squarely conflicting with an earlier mark, whose owner may then oppose or sue. Clearance is the applicant’s job, not the examiner’s.
Availability can be total or partial — a sign may be free for some goods and services but blocked for others.
Availability is not measured against registered trademarks alone. A prior-rights search also has to account for earlier company names, trade names, domain names, and, in some cases, geographical indications or the rights of a person over their own name — any distinctive sign genuinely used in commerce and capable of creating a risk of confusion with the proposed mark can, in principle, block it. This is broader than the way many US practitioners first frame a “trademark search”: in France and the EU, an unregistered but locally well-known trade name can defeat a later trademark application just as effectively as a registered mark can, provided its owner can show real, prior use.
Because neither the INPI nor the EUIPO screens new applications against earlier marks on its own initiative, availability is never something an office “clears” for the applicant — it is a judgment call counsel makes, based on the search results, before money is spent on filing, marketing or manufacturing. A registration certificate proves the office examined the application for absolute grounds (distinctiveness, descriptiveness, deceptiveness); it says nothing about whether an earlier rights holder could still oppose or sue. That gap between “registrable” and “available” is the single most common point of confusion for US clients new to the French and EU systems.
The exercise maps closely onto what a US trademark attorney would call a clearance opinion, built on a comprehensive search covering the USPTO register, state registrations, and common-law use. The core difference is what the search has to compensate for: US applicants at least get an examiner cross-check against the federal register for likelihood of confusion before a mark is allowed to publish, so a clearance search there is a risk-management supplement to an existing safety net. In France and the EU, the search is the safety net — nothing else stands between a new filing and a later opposition or infringement suit.
A US retailer wants to launch a new product line in France under a name it already uses successfully in the United States. A search of the French and EU trademark registers shows no identical or confusingly similar registered mark. But a broader availability check turns up an unregistered French boutique trading under a strikingly similar trade name in the same sector for several years. Because French law protects genuine prior use of a trade name, that boutique — despite having no registered trademark at all — could still oppose the later application or bring an infringement-adjacent claim, illustrating why a registry-only search is not enough to confirm availability.
Availability is the question every trademark clearance search is designed to answer before choosing a trademark or committing to a French or EU filing. See also prior-rights search, similarity search and likelihood of confusion.