Napoleon is not a national emblem of France, says Council of State

The Greek Council of State, acting as final appellate court (Case 1104/2009), has held that Napoleon could not be regarded as a national emblem of France under the Trademarks Act (2239/1994) and the Paris Convention for the Protection of Industrial Property. 

A Greek company engaged in the production of tissues, kitchen towel and toilet paper applied for the registration of a trademark consisting of the depiction of Napoleon with one hand in his coat (as illustrated by Jacques-Louis David in a famous painting) and the other hand holding a toilet roll, as well as the word 'Napoleon' in Greek. The application covered goods in Classes 3, 5 and 16 of the Nice Classification (including toilet paper, kitchen towel, tissues, paper napkins, table clothes and bin bags). 

Under Article 3(2)(a) of the Trademarks Act, the following signs may not be registered as trademarks:

• the flags, emblems, symbols and armorial bearings of the Greek state, or of any other state mentioned in Article 6ter of the Paris Convention; and
• signs of great symbolic value, especially religious symbols, representations and notions.

The Administrative Trademark Committee rejected the application under the act and the Paris Convention on the grounds that it contained a national symbol of France. Both the First Instance Administrative Court and the Court of Appeal affirmed.

On appeal, the Council of State held that although Napoleon is widely associated with French history, his image or name cannot be considered as symbols of national sovereignty or identity. Therefore, use of the image at issue did not fall within the scope of the act or of the Paris Convention. Further, the council held that the mark did not pose a risk to public order or morality. The council seemed to believe that use of Napoleon's image on toilet paper was no different from previous uses of his likeness on alcoholic beverages, confectionery, sausages, grills and tourist guides. The council refused to express an opinion as to the aesthetic value of Napoleon’s representation for the goods at issue.

Unfortunately, bad taste has never been a reason for rejecting a trademark application. The Council of State allowed the appeal and remanded the case to the Administrative Court of Appeal for final judgment.