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The purpose of Article 6ter is to prevent that the signs covered by that provision are registered or used as trademarks, or as elements of trademarks, without the authorization of the competent authority.
Article 6ter does not generate a trademark right, or any other type of intellectual property (IP) right, over the signs that are covered by that provision.
What does Article 6ter cover?
Signs to which Article 6ter applies
The list of eligible signs is exhaustive.
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State emblems generally constitute the symbol of the sovereignty of a State. They frequently contain heraldic elements, such as a lion, an eagle, the sun, etc. It is understood that the category of “other State emblems” comprises the escutcheons of reigning Houses, as well as emblems of States included in a Federative State. However, emblems of lower public bodies (such as municipalities) and signs adopted for a limited period of time (for instance, for the celebration of a State anniversary) are not covered.
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The purpose of official signs and hallmarks indicating control and warranty is to certify that a State or an organization duly appointed by a State to that effect has checked that certain goods meet specific standards or have a given level of quality. Official signs and hallmarks indicating control and warranty exist in several States with respect to precious metals or products such as butter, cheese, meat, electrical equipment, etc. In principle, official signs and hallmarks indicating control and warranty may also apply to services, for instance those relating to education or tourism, etc. Only signs and hallmarks adopted by a State itself are eligible for the application of Article 6ter.
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The protection does not extend to signs of IGOs which are already the subject of international agreements in force, intended to ensure their protection. Examples of such agreements are the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces (1949) which protects the emblems of the Red Cross, or the Nairobi Treaty on the Protection of the Olympic Symbol (1981).
Scope of protection provided by Article 6ter
The protection offered by Article 6ter is not of a general nature. The purpose of this provision is to prohibit the registration and use of trademarks which are identical to, or present a certain similarity with the emblems or official signs.
The protection afforded to official signs indicating control and warranty is more limited than the protection afforded to State emblems. Article 6ter(2) provides that, in the case of official signs indicating control and warranty, the provision "shall apply solely in cases where the marks in which they are incorporated are intended to be used on "goods of the same or similar kind." Under Article 16 of the Trademark Law Treaty (TLT) and Article 16 of the Singapore Treaty on the Law of Trademarks (STLT), this provision extends to services.
Who is concerned by Article 6ter?
Parties bound to apply Article 6ter
All States party to the Paris Convention , as well as the Members of the World Trade Organization (WTO) not party to that Convention are bound to apply Article 6ter.
Who can benefit from application of Article 6ter
States party to the Paris Convention and international intergovernmental organizations (IGOs), of which one or more member States are party to the Paris Convention can benefit from the application of Article 6ter.
In application of the Guidelines for the Interpretation of Article 6ter(1)(b) and (3)(b) adopted by the Paris Union Assembly in 1992, to any program or institution established by an IGO, and any convention constituting an international treaty may, under certain conditions, benefit from the protection granted by Article 6ter(1)(b) of the Paris Convention.
The conditions are the following:
- the programs or institutions are established by an IGO;
- the programs or institutions constitute or are intended to constitute a permanent entity within the IGO;
- the conventions establish or are intended to establish a permanent entity;
- the programs, institutions or conventions cannot be of a temporary nature;
- the programs, institutions or conventions should have specified aims, clearly defined in their constituting act or charter;
- the programs, institutions or conventions should have their own rights and obligations. In other words, the entity should be independent from the IGO (e.g., have its own Executive Secretary/Director General, its own budget, staff/Secretariat, host agreement etc.), as detailed in a constituting charter or enabling regulations.
The provisions of Article 6ter are not applicable to the names, emblems or abbreviation of Non‑Governmental Organizations.
How to apply Article 6ter
Procedure to request application of Article 6ter
For the application of Article 6ter, the requesting party has to communicate, via the International Bureau of WIPO, the sign(s) concerned to the parties bound to apply Article 6ter. This is done through a request for communication, transmitted to the International Bureau. The International Bureau then communicates the signs concerned to the parties bound to apply Article 6ter in the form of a semi-annual electronic publication in the Article 6ter Express Database on the WIPO website. The communication of flags of States is not mandatory, although it may be requested by States if they so wish.
As a first step in the communication procedure, an informal exchange should be undertaken with the International Bureau, with the aim of ensuring that the request for communication is complete. A draft request and draft reproduction should be sent for comments to [email protected], in line with the below requirements.
Once the drafts are found to be in order by the International Bureau, the formal request should be addressed to the International Bureau. A scanned copy can be sent (via[email protected]).
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The following is required in a request for communication:
Publication
Contents of the Article 6ter Express Database
After each semi-annual publication, a link to the latest communications is inserted into the database, featuring the communications received by the International Bureau during the six months previous to the publication.
Under each record, the category of the sign concerned, as well as the entity (State or IGO) having requested its communication, is published in English and French, together with the reproduction of the sign and any relevant information (contact details, classification of the figurative elements, etc.).
The date of publication, also mentioned in the record, is considered to constitute the date of receipt of the communication by any party bound to apply Article 6ter. Consequently, the time periods provided for in Article 6ter(4) and (6) of the Paris Convention are calculated as of that date of publication.
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Electronic publication in the Article 6terExpress Database does not amount to a registration and does not create IP rights over the signs. Publication in the Article 6ter Express Database constitutes the means of communication of signs to the States due to apply Article 6ter. In particular, the electronic publication is without prejudice to the obligation under Article 6ter(3)(a) for States party to the Paris Convention to make available to the public the signs communicated.
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Objections
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Any party bound to apply Article 6ter may, within a period of twelve months following the date of publication, issue an objection to the protection of a particular sign (Article 6ter(4)).
The following are examples of grounds on which objections have been based:
- the sign is not a symbol of sovereignty of the communicating State
- the sign does not constitute a hallmark for products
- the sign pertains to a lower entity
- an earlier trademark right is already protected in the jurisdiction
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In general, objections are issued by the competent authority of the parties bound to apply Article 6ter, i.e. national IP or trademark offices.
Objections are addressed to the International Bureau, through a letter indicating the 6ter reference number(s) of the sign(s) concerned, as well as the objection ground and any relevant information for the party who communicated the sign (actions against the objection, if any, and time limit to undertake those actions). The International Bureau then transmits the objection letter to the party who communicated the sign.
Information concerning objections (the name of the objecting State and the date of the objection) is reflected in the bibliographical data of the sign, in the Article 6ter Express Database.
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Article 6ter does not provide for any procedure following an objection: this is a matter of national law and procedure in the jurisdiction of the objecting party. Some parties indicate a time limit to respond to objections.
In any case, the settlement of any objection is left to a bilateral consultation between the communicating and objecting parties. The International Bureau does not intervene in those consultations.
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Objections can be withdrawn at any time by the issuing party, through a simple letter addressed to the International Bureau. Such withdrawal will be notified to the communicating party and reflected in the bibliographical data of the sign, in the Article 6ter Express Database.
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A party that issued an objection is not under an obligation to apply Article 6ter to the sign concerned. Protection of such a sign in the parties that did not issue an objection is not affected.
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Any competent authority that requested the communication of a sign under Article6ter can request its withdrawal through a letter addressed to the International Bureau, indicating the 6ter reference number of the sign concerned.
There is no need to justify the withdrawal.
Withdrawn signs are not removed from the Article 6terExpress Database, but an indication of the withdrawal is mentioned in the corresponding bibliographical data.
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A new request for communication is necessary if the changes are substantial (different figurative elements, different name or abbreviation). In that case, the same procedure as for the first request applies: a draft request and reproduction, followed by an official request, should be transmitted to the International Bureau.
Concerning the earlier communicated sign, two options are available to the communicating party:
- Request the withdrawal of its protection (see above);
- Maintain its protection. In such a case, the following indication should be inserted in the letter requesting the communication of the new sign: “the present request is without prejudice to the communication of the [indicate the category of the sign(s) and the 6ter number(s)], dated […]”
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Article 6ter offers protection to the communicated signs against their registration or use as trademarks without the authorization by the competent authorities of the communicating party. That means that those competent authorities can authorize the registration or use of a sign as a trademark, upon request, for instance when the use of the sign would not be considered misleading as to the origin of the goods or services to which the trademark would apply.
Requests for authorization should be addressed directly to the competent authorities of the State or IGO concerned. The decision whether to authorize or not the registration or use of a communicated sign as a trademark belongs also to such competent authorities. The International Bureau does not intervene in that matter.
If a communicated sign is registered or used as a trademark in a country, without the communicating party’s authorization, it falls within the communicating party’s sole responsibility to decide what action to undertake (e.g. consultations with the trademark/IP Office of the jurisdiction in which the sign is registered or used as a trademark). The International Bureau is not involved in that process.
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The Article 6ter Express Database is a publicly available and free-of-charge database, which allows for the search of any sign that has been communicated under that provision (including withdrawn signs). Searches can be made by State, name of the requesting entity, category of the signs, Vienna Classification or Circular number (for signs communicated before March 2009).
It should be noted that the database does not constitute a registry, but merely an information tool.