Author: Claudio Balboni

About a year ago, in the UK, the famous fast food chain McDonald’s launched an advertisement depicting two female colleagues at work, probably close to lunchtime, planning their break at a McDonald restaurant. Recently, this spot also arrived in Italy and was an immediate success with the public.

In the spot, one colleague looks at the other, raises an eyebrow and hands her a note with the chain’s famous “M” on it.
The colleague immediately responds by raising both eyebrows, in a gesture that the company’s advertisers clearly wanted to link to the M on the note, recalling the famous fast food brand.
At this point, in fact, the two colleagues get up from their desks and, as they walk through the office, repeat the eyebrow gesture to their other colleagues, who immediately understand the invitation, repeat the same gesture and the whole office rushes to a McDonald’s restaurant.

The affixing of the note to the colleague’s PC, accompanied by the immediate raising of both eyebrows, thus seems to convey to the consumer that such a gesture is a reference to McDonalds renown “Golden Arches”.

The “Raise your Arches” effect

Everyone now could connect this gesture with an invitation to go to the famous restaurant.
From now on, the “Raise Your Arches” will probably imply the fast food service in question.
It seems clear, therefore, that this simple gesture has now become a kind of Trademark to all intents and purposes.
A motion mark, specifically, but still a Trademark.

The new opportunities of Intellectual Property: the so called “non-traditional marks”

The latest reform of the EU Trademark Regulations expands the category of signs eligible for registration as trademarks as does that of the Italian National Industrial Property Code (CPI).

Motion marks, to tell the truth, were not manifestly envisaged; however Art. 4 of the EU Regulation and Art. 7 of the CPI are not categorical in identifying “signs” that may constitute trademarks, so they leave ample room for interpretation to devise the protection of gestures that unequivocally relate to a certain product or service.

In fact, the only two requirements set by said regulations in order for a sign to be eligible for registration, are that it should be capable of specifically distinguishing the goods or services of one undertaking from those of others (a result which Mc Donald’s could be able to achieve thanks to its “Raise Your Arches” campaign) and that it should be capable to be represented in the EU or Italian Trademark Register.

What is a Motion Mark

The interesting thing is that, with the aforementioned reform, the door was opened to various ways of representing trademarks. In fact, it is now possible to use digital files that reproduce them. The guidelines of the EUIPO discuss Motion marks even if, in doing so, they refer to a trademark that “consists of, or extends to,a movement or a change in the position of the elements of a mark” and although the “Raise Your Arches” consists of a human facial expression, if it was showed that consumers recognize and associate it with Mc Donalds in my view it might very well be possible to try to protect it.