Descriptiveness and Stylisation in France: Article L.711-2, 3° of the CPI

France’s trade mark law takes a strict approach to descriptive marks. Under Article L.711-2, 3° of the Code de la Propriété Intellectuelle (CPI), a sign composed exclusively of elements or indications which may serve to designate, in trade, a characteristic of the goods or services — including their kind, quality, quantity, intended purpose, value, geographical origin, or the time of production or rendering — cannot be validly registered. The INPI applies this prohibition rigorously as part of its ex officio examination of absolute grounds, and recent practice has become increasingly strict, particularly regarding figurative marks that attempt to overcome descriptiveness through minor graphical embellishments.

The Legal Framework: Absolute Prohibitions Under Article L.711-2

Article L.711-2 of the CPI, as revised by Ordinance No. 2019-1169 of November 13, 2019, consolidates all 11 absolute grounds for refusal and invalidity into a single provision. The descriptiveness prohibition operates alongside related grounds:

• Article L.711-2, 2°: Marks devoid of distinctive character.
• Article L.711-2, 3°: Marks composed exclusively of descriptive elements (kind, quality, quantity, purpose, value, geographical origin, time of production, or other characteristics).
• Article L.711-2, 4°: Marks composed exclusively of elements that have become customary in the current language or bona fide trade practices (“generic terms”).

These grounds frequently overlap: a descriptive sign is typically also devoid of distinctive character, and over time a descriptive term may become the generic designation for the product itself.

What “Descriptive” Means Under French Practice

The INPI assesses descriptiveness from the perspective of the average French consumer, who is considered reasonably well-informed, observant, and circumspect. A mark is descriptive under Article L.711-2, 3° when it directly and immediately informs the consumer about a characteristic of the goods or services, without requiring any mental effort or interpretation.

The assessment is made in relation to the specific goods or services designated in the application. A word that is descriptive for one category may be perfectly distinctive for another — the classic example being the brand ORANGE for telecommunications services, which is distinctive, whereas “ORANGE” for fruit would be generic.

The INPI also considers foreign-language terms: if the average French consumer would understand an English or other foreign-language word as descriptive of the goods, the mark will be refused. Common English terms widely used in French commerce — such as “NATURAL,” “FRESH,” “CLEAN,” “SMART,” or “EXPRESS” — are frequently refused for the goods or services they describe.

The Strict Standard for Word Marks

The INPI applies a particularly strict standard to pure word marks (marques verbales) that are descriptive. A word mark protects the word itself in any visual presentation. This means the Article L.711-2, 3° prohibition applies with full force: if the word is descriptive, the mark is refused, regardless of how the applicant might intend to use it visually.

Combinations of descriptive words are treated as descriptive unless the combination creates a genuinely new, non-obvious meaning that the consumer would not immediately recognise as describing the goods. Simply joining two descriptive terms typically does not overcome the objection. The overall impression must go beyond the sum of the descriptive parts.

Why Minor Graphical Tweaks Fail

Historically, it was relatively easy to obtain registration of weakly distinctive or descriptive marks before the INPI by adding a figurative element — a logo, a particular font, a colour treatment. This is no longer the case. Since the 2019 reform and the INPI’s alignment with European practice, the office has become considerably stricter in its assessment of figurative marks (marques semi-figuratives) containing descriptive word elements.

The current position is clear:

• A figurative mark containing a descriptive word is registrable only if the figurative elements are sufficiently distinctive on their own to impart distinctive character to the mark as a whole.
• Simple geometric shapes, standard typefaces, common colour combinations, basic borders, and ordinary decorative flourishes are not sufficient to overcome the descriptiveness of the word element.
• The protection obtained through a logo does not truly protect the descriptive name — only the figurative element itself is effectively protected. The word remains unprotectable and the mark is vulnerable to challenges.

This stricter approach aligns the INPI with the EUIPO’s established practice and with the EU Common Practice on figurative marks containing descriptive or non-distinctive word elements. Practitioners who recall the more lenient pre-2019 standards must adjust their expectations.

Generic vs. Descriptive: The Critical Distinction

French law distinguishes between:

• Generic terms (Article L.711-2, 4°): The common name for the product or service itself. These cannot be registered under any circumstances and cannot be rescued through acquired distinctiveness. Example: “VÊTEMENTS” (clothing) for clothing products.
• Descriptive marks (Article L.711-2, 3°): Terms that describe a characteristic of the product but are not the product’s name. These can potentially be saved through acquired distinctiveness (distinctivité acquise par l’usage — discussed in a separate article).

The Procedure for Responding to a Descriptiveness Refusal

When the INPI issues a provisional refusal citing Article L.711-2, 3°, the applicant receives notification and has generally one month to respond. The response may include arguments that the mark is suggestive rather than directly descriptive, evidence of acquired distinctiveness through use, or amendments to the application (such as converting a word mark into a figurative mark with sufficiently distinctive graphical elements or narrowing the goods specification).

If the INPI upholds the refusal, the applicant may appeal to the Court of Appeal (Cour d’appel) having jurisdiction over the applicant’s domicile, within one month of the decision. This is a full appeal on both fact and law.

Strategic Recommendations

• Choose inherently distinctive marks: Invented words, arbitrary terms, and suggestive marks avoid the descriptiveness issue entirely and provide the broadest scope of protection.
• Do not rely on minor stylisation: Adding a generic font, colour, or simple shape to a descriptive word will no longer save the mark before the INPI. The figurative elements must be genuinely distinctive.
• Assess the mark from a French consumer’s perspective: English terms commonly understood in France will be treated as descriptive. Consider how the average French consumer would perceive the term.
• Understand the limits of logo protection: Even if a figurative mark is accepted, the descriptive word element within it receives little meaningful protection. Only the design component is truly defended.
• Build evidence of use before filing: If a descriptive mark is commercially important, begin accumulating evidence of consumer recognition in France before filing. This supports a potential acquired distinctiveness argument.

Common Mistakes

• Filing a descriptive word mark and hoping for the best: The INPI examines absolute grounds ex officio. A clearly descriptive word mark will be refused.
• Adding a font or colour and expecting registration: The INPI has become increasingly strict since 2019. Minimal graphical elements do not overcome the descriptiveness of the word.
• Assuming foreign-language terms are safe: English terms widely understood in France are frequently refused as descriptive.
• Combining two descriptive words: Unless the combination produces a genuinely new and non-obvious meaning, it remains descriptive.
• Relying on pre-2019 precedent: The INPI’s standards have tightened significantly since the 2019 reform. Past registrations of weakly distinctive marks do not guarantee acceptance of similar applications today.

Key Takeaway

France’s approach to descriptive marks under Article L.711-2, 3° is strict and has become even stricter since the 2019 reform aligned INPI practice with European standards. The INPI examines absolute grounds ex officio and will refuse descriptive word marks without hesitation. Minor graphical embellishments no longer rescue a fundamentally descriptive sign — the figurative elements must be independently distinctive. Applicants who invest in inherently distinctive marks avoid this battle entirely. Those committed to descriptive branding must be prepared to demonstrate acquired distinctiveness through substantial evidence of use in the French market.