Propriétés incorporelles

UE trademark: sign in movement, technical solutions and small film

On 14 January 2026, the Tribunal of the European Union (Trib. UE 16 janvier 2026, Kct GmbH & Co. KG, aff. T-9/25) confirmed the rejection of filing of a mark in movement before the EUIPO (European Union Intellectual Property Office). The filing consisted of a sequence of a few seconds showing a window opening and closing, in a series of technical images.

EUIPO is in charge of granting the monopoly of the exploitation of a mark within the European Union, as intellectual property is, since the Lisbon Treaty entered into force on 1^st December 2009 (TFEU amending Rome Treaty and Maastricht Treaty), expressly the competence of the European Union (see C. Santulli, Introduction au Droit Européen, organisations et principes, LGDJ 3^ème éd. 2024, n°59 p. 77). By the application of article 188 of the TFEU, the scope of the competence is wide: “establishment of measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements”.

The Tribunal confirmed the rejection of the filing for two reasons: (i) the fact that the sign was constituted by the feature of the product itself, giving a substantive value of the product (in contradiction with 7,1. e), iii) of regulation EU 2017/1001 dated 14 June 2017), and (ii) the aptitude of the sign to constitute a mark (absence of the distinctive feature).

We know that Microsoft already succeeded in filing a series of images for a period of 1 to 2 seconds and that the Paquet marques has been making it easier to process with such a filing for a long time (see S. Visse-Causse, Droit de la propriété intellectuelle, Lextenso 4^ème éd. 2022, p. 189).

The subject of the filing (in class 12 of the arrangement of Nice, mainly vehicles and transportation), is not considered as qualifying as a mark, by the teleological construction of regulation 2017/1001 (general interest). This is to avoid a company obtaining, by the registration of a mark, a monopoly on the technical solutions (here the opening and the closing of the window) or utilitarian features of a product. A given protection shall not be beyond the distinctive sign. In a nutshell, the idea here is to avoid a capture by a company of technical solutions, and thus the obtention of an illimited protection by the trademark of them (where there shall be only time limited protection in respect of technical elements, such as patents for example). The aim is, in fine, to maintain the free movement of the products within the EU.

It has to be noted that the CJUE remarks that the recourse chamber (chambre des recours) made a mistake when stating that the struts (entretoises) were not an essential part of the mark lodged.  

The aptitude of a sign to qualify as a mark is defined by the CJUE (for a smell: CJUE, 12 décembre 2002, n° C-273/00, Sieckmann, for a noise or a sound: CJUE, 27 novembre 2003, n° C-283/01, Shield Mark, for a color: CJUE, 6 mai 2003, n° C-104/01, Libertel groep BV; for a word: CJUE, 12 décembre 2001, n° C-383/99, Baby Dry, all cited in Les grands arrêts de la propriété intellectuelle (sous la direction de M. Vivant), Dalloz 3^ème éd. 2020).

Here, this aspect of the filing is not analyzed, as only one reason for refusal is sufficient to reject the filing.

Albeit not within the scope of the filing, it might be of interest to take the opportunity to analyze the distinction between a series of sequences of images and a film. The Code du cinéma makes a distinction between a long film (more than one hour) or a small film (less than one hour), both projected in movie theatres (P. Kamina, Droit du cinéma, LexisNexis, 3^ème 2022, éd. n°68, p. 62). This means that the projection should be part of the qualification of the oeuvre cinématographique (cinematographic work), concept used in French law, as well as the obtention of the visa d’exploitation (cultural visa) beforehand. As such, it is easy to make a distinction between the two.

Up to date 14 January 2026.