Colour trademark
Encyclopedia
A colour trademark is a non-conventional
trademark
where at least one colour
is used to perform the trademark function of uniquely identifying the commercial origin of products or services.
In recent times colours have been increasingly used as trade marks in the marketplace
. However, it has traditionally been difficult to protect colours as trademarks through registration, as a colour as such was not considered to be a distinctive 'trademark'. This issue was addressed by the World Trade Organization
Agreement on Trade-Related Aspects of Intellectual Property Rights
, which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)).
Despite the recognition which must be accorded to colour trademarks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue.
, Article 4 of Council Regulation (EC) No. 40-94 of 20 December 1993 ("signs of which a Community Trade Mark
may consist") relevantly states that any CTM may consist of "any signs capable of being represented graphically...provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings". In Libertel Groep v Benelux Merkenbureau (case C-104/01) dated May 6, 2003 the ECJ repeats the criteria from Sieckmann v German Patent Office (case C-273/00) that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.
This definition generally encompasses colour marks, and therefore an applicant for a CTM or a national trademark in the EC may define their colour trademark using an international colour code such as RAL
or Pantone
. In most cases, a colour trademark will only be registered after an enhanced distinctiveness through use in the EC has been proven.
, the United States Supreme Court held that a colour could be used as a trademark in the case of Qualitex Co. v. Jacobson Products Co., Inc.
, 514 U.S. 159 (1995)
Non-conventional trademark
A non-conventional trademark, also known as a nontraditional trademark, is any new type of trademark which does not belong to a pre-existing, conventional category of trade mark, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of...
trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
where at least one colour
Color
Color or colour is the visual perceptual property corresponding in humans to the categories called red, green, blue and others. Color derives from the spectrum of light interacting in the eye with the spectral sensitivities of the light receptors...
is used to perform the trademark function of uniquely identifying the commercial origin of products or services.
In recent times colours have been increasingly used as trade marks in the marketplace
Marketplace
A marketplace is the space, actual, virtual or metaphorical, in which a market operates. The term is also used in a trademark law context to denote the actual consumer environment, ie. the 'real world' in which products and services are provided and consumed.-Marketplaces and street markets:A...
. However, it has traditionally been difficult to protect colours as trademarks through registration, as a colour as such was not considered to be a distinctive 'trademark'. This issue was addressed by the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
, which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)).
Despite the recognition which must be accorded to colour trademarks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue.
Australia
Requirements are set out in the Trade Marks Office Manual of Practice and Procedure issued by IP Australia.European Union
In the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, Article 4 of Council Regulation (EC) No. 40-94 of 20 December 1993 ("signs of which a Community Trade Mark
Community Trade Mark
A Community M application in any member state can defeat the entire application, a CTM registration is enforceable in all member states.The CTM system is administered by the Office for Harmonization in the Internal Market , which is located in Alicante, Spain .- Character and advantages :The...
may consist") relevantly states that any CTM may consist of "any signs capable of being represented graphically...provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings". In Libertel Groep v Benelux Merkenbureau (case C-104/01) dated May 6, 2003 the ECJ repeats the criteria from Sieckmann v German Patent Office (case C-273/00) that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.
This definition generally encompasses colour marks, and therefore an applicant for a CTM or a national trademark in the EC may define their colour trademark using an international colour code such as RAL
RAL (color space system)
RAL is a color matching system used in Europe. In colloquial speech RAL refers to the RAL CLASSIC system, mainly used for varnish and powder coating.- RAL CLASSIC:...
or Pantone
Pantone
Pantone Inc. is a corporation headquartered in Carlstadt, New Jersey, USA. The company is best known for its Pantone Matching System , a proprietary color space...
. In most cases, a colour trademark will only be registered after an enhanced distinctiveness through use in the EC has been proven.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the United States Supreme Court held that a colour could be used as a trademark in the case of Qualitex Co. v. Jacobson Products Co., Inc.
Qualitex Co. v. Jacobson Products Co., Inc.
Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 was a case in which the United States Supreme Court held that a color could meet the legal requirements for trademark registration under the Lanham Act, provided that it has acquired secondary meaning in the market.-Facts and Procedural...
, 514 U.S. 159 (1995)
External links
- Welcome to the non-traditional Trade Mark Archives — the non-traditional trade marks archives of Ralf Sieckmann include i.a. a data base of trade marks in the field of colour, sound, smell, motion, hologram, aroma, texture.
- The fresh version of Non-Traditional Trade Mark Archives under publications