Can you Trademark a QR code?

Do you run a company that offers your customers to use ‘Quick Response’ (QR) codes to avail services? If so, you must have considered registering your QR code as a Trademark at least once. Irrefutably, the use of OR codes is growing every day, and business owners who use them are curious as to whether they may trademark the code to prevent infringement.

What are QR codes?

A QR code is a type of barcode that stores data in a series of pixels. These pixels can be read and decoded by electronic devices such as smartphones having built-in QR readers. Originally utilized in the automotive industry, QR codes are now often used in advertising, payments, product tracing, and counterfeit detection, among other applications. A QR code directs users of a camera-equipped mobile device to a website or other targeted online content.

Are QR codes covered by the Trademark Act?

QR codes cannot be registered on their own since Trademark Act only protects characteristics that make it simple for the public to recognize the goods and services, such as names, logos, slogans, sounds, or colours. The same is true when it’s usually challenging to determine the source by just scanning a QR code. Nevertheless, a Trademark application can be submitted to register a logo that uses a QR code. 

Like any other Trademark, the QR code logo must be used in conjunction with the branding of goods and services. The logo should be an instantly identifiable and distinctive aspect of the brand and should distinguish one’s goods or services from those provided by other businesses in the same industry.

International Picture:

Large Swiss payment platform operator SIX Interbank Clearing AG has submitted an application to register the QR code with an inset cross on a dark square under classes 35, 36, and 38 in Switzerland. The application stated that neither a red on white backdrop nor a white on red background version of the cross that served as the sign’s focal point would be duplicated. It was designed to prevent the application from being turned down because it was too near to the Swiss flag or the Red Cross emblem.

Due to a lack of distinctiveness, the Federal Institute of Intellectual Property denied the application. The following two points were taken into account: –

  • QR codes serve a technical function and are not used to communicate directly with the clients of the claimed services.
  • The cross-shaped element in the middle of the sign is too small to compensate for the sign’s general lack of distinctiveness.

Following that, the applicant filed an appeal before the Federal Administrative Court. The Federal Administrative Court upheld the appeal. First, it supported the finding of the lower court that the potential of the QR code to indicate the source of a good or service is precluded by its technological conditionality. Moreover, it is difficult for humans to memorize the square pattern. It was decided that the functional section of a QR code should be treated as if it had any unique characteristics. The court further held that the QR codes could be either decorative designs or device marks, both of which are intrinsically registrable signs. Consequently, the Court upheld the appeal and returned the matter to the Federal Institute of Intellectual Property so that it might register the sign with a wider disclaimer that includes the sign’s black and white counterpart.

Why QR codes cannot be registered as Trademarks?

Multiple factors lead to the rejection of trademark applications that solely include a QR code. The first and most glaring problem is a lack of distinctive nature. A QR code is not considered to be a sign that indicates a commercial source. The second reason is that it is hard to trademark names or symbols that are customary in standard business activities. Lastly, it is not possible to register trademarks that are in conflict with ‘public policy.’

It is unclear what kind of protection these trademarks will provide to their owners, but given how well-liked QR codes have grown during the epidemic for even the most basic activities such as traveling, dining out, etc., greater clarification is undoubtedly expected in the future.  

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