Can the Kärcher brand object to the use of its name by Valérie Pécresse?

“I’m going to take the Kärcher out of the cellar”, promised Valérie Pécresse in an interview with Provence, January 5. A declaration in the middle of the presidential campaign, which paraphrases that of former President Nicolas Sarkozy, his former mentor. These remarks by candidate LR caused a stir in the political class and even led the Kärcher brand to react in person. In a press release, the German group asked “Political figures and the media to immediately cease all use of its brand in the political sphere, which undermines its brand and the values ​​of the company” and reminded that this was not “the flag of no political party, but the exclusive property of Kärcher companies”.

If the group refuses to be associated with the security theme of the presidential campaign, can it really oppose the use of its name by a third party? What rights does he have over his trademark? According to a definition adopted by the jurist Véronique Staeffen in her book “General aspects of the mark in French law”, “the right to a trademark can be defined as being the exclusive right recognized for a company to designate its products and/or services by a specific distinctive sign; this monopoly on the trademark confers on its holder the right to prohibit the use by third parties of a sign likely to create confusion”.

But it happens that certain brands lose their distinctive power and become generic because of their use in everyday language. From proper name to common name, a form of antonomasia. We can cite the best known cases of the Bic, Labello or even Caddie brands. The Wikipedia site even devotes one of its pages to all these brands which have “degenerated” by becoming a common name. Some go so far as to be dispossessed of their name and the exploitation and exclusivity rights that surround it: this was the case with the Pedalo and Piña Colada brands. As provided for in article L714-6 of the intellectual property code, “incurs the forfeiture of his rights the holder of a mark which has become of his own making: the usual designation in the trade of the product or service”.

And that is what threatens Kärcher today. However, it is possible to avoid it, points out Me Louise Lacroix, lawyer specializing in trademark law: “The sanction of forfeiture presupposes two cumulative conditions: on the one hand, generalized use of the mark to the point that it is no longer perceived as such by the public but only as the designation of a product or service, on the other hand that it comes from the fact of the owner of the mark, that is to say from his inaction to protect it”. Thus, a revoked trademark cannot be revoked if its holder acts against the loss of his rights. In other words, if he is sufficiently offensive in his communication and reaffirms his monopoly on the use of his name. “There must be a clear will to fight against this dispossession”, abounds Me Bérénice Ferrand. According to this intellectual property lawyer, president of Avocap 2.2, it is for this reason that the risk for Kärcher of losing its rights to its brand remains limited to date.

The German group has been positioning itself in the press for years against the appropriation of its name by politicians. First this week but also in August 2020, when Kärcher published a press release in several French newspapers, as France Inter recalls here, expressing its disagreement with what “its brand is borrowed by the speech or for any other subject which would designate something other than its products”. Three years earlier, on the occasion of the presidential election, the group had sent a letter to the candidates after observing “the regular use of the name of his company on the political scene, in relation to social issues that are at the very least sensitive”.

The approach was substantially the same during the right-wing primaries of 2016, or even for the previous elections of 2012 and 2007. This is because, after the now notorious recovery of Nicolas Sarkozy, then Minister of the Interior, who asked in 2005 to “clean the city with Kärcher”, the group has become alert to possible uses of its name for political purposes. Already at the time, the brand had given itself a full page in the daily Vosges Matin to distance itself from these remarks and to remind “protected use” from Karcher.

To prove its extreme vigilance on these issues, the German group has even undertaken a monitoring system to be warned of situations where its image is used and misappropriated, as marketing professor Bertrand Berthelot points out in the pages of Release. A common practice among brands in the process of degeneration, notes Me Louise Lacroix, who explains that “if the holder does not do this preventive work by verifying the uses of his mark, when he knows that there is a chance that it will end up degenerating, he will be criticized for not having been offensive enough and for not ‘not to have protected the distinctive character of its mark’.

In short, Kärcher “is in its right to oppose the uses” made by third parties, whether Valérie Pécresse or another political leader. The danger for the group is to be one of those brands that have fallen into common language, which is used as a generic term. Threatened, the mark nevertheless acts for more than 15 years to protect its name and the rights which surround it.

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