Colour Marks: The Issue Of Trade Marking Colours

From energy drinks to the striking soles of designer shoes, the colour of a product or its packaging is often a key factor for traders to consider. For some traders, colour can be such a fundamental part of their brand that they seek to protect the colour itself as a trade mark.

While consumers are familiar with 'traditional' signs such as product names and logos being used as trade marks, the trade mark laws in the UK and the European Union also allow for registration of other types of 'non-traditional' signs such as colours, and even smells and sounds.

However, as Red Bull and Christian Louboutin have discovered, the law on colours can be a grey area. To cut through the red tape and achieve the golden opportunity of protecting their colour, trade mark applicants should be aware of the difficulties they may face.

Generally, the courts have taken the position that consumers are not accustomed to perceiving colours as trade marks - that is, they may not perceive a colour as a sign which designates the origin of goods or services of a particular undertaking. As a result, it can be difficult to prove that a colour or combination is distinctive in relation to the goods and/or services on which it is used. The courts are also reluctant to allow any one trader to have a monopoly over a colour.

The Red Bull and Louboutin cases highlight the difficulties in obtaining a trade mark registration for a colour or combination of colours.

Colours canned - Red Bull v EUIPO

Red Bull energy drinks are sold in blue and silver cans, with the two colours presented on alternating quarters of the can, separated by a diagonal slant.

Red Bull had previously obtained two EU trade mark registrations (No. 2534774 and No. 9417668) for the colour combination of the blue and silver in respect of energy drinks. As well as providing the Pantone codes for each colour, the description for the first mark also stated that 'The ratio of the colours is approximately 50%-50%', and the second mark indicated that 'The two colours will be applied in equal proportion and juxtaposed to each other'.

In Joined Cases T-101/15 and T-102/15 Red Bull v EUIPO, the General Court of the EU declared both of these marks to be invalid. The Court held that the descriptions of the marks 'allowed for the arrangements of those colours in numerous different combinations', and therefore the marks did not 'constitute a systematic arrangement associating the colours in a predetermined and uniform way'.

...