Another Blow For Colour Trade Marks? Red Bull Decision ‘Coloured' By The Perceived Need To Keep Trade Mark Colour Monopolies As Limited As Possible

Since as long ago as 2002 Red Bull have been attempting to obtain, but more importantly retain a registered EU trade mark ('EUTM') for a combination of blue and silver for its famous energy drink product.

The latest in a number of decisions by the relevant EU authorities, on this occasion the EU General Court, T-101/15 and T-102/15 Red Bull v EUIPO, maintained a previous decision of the EU Board of Appeal to the effect that two previously granted such trademarks should be cancelled as invalid. The basic reason given for this was that these marks were lacking in sufficient precision as to the scope of the monopoly covered.

Colour trade marks, like other non-traditional types of trade marks ( eg sounds, smells , shapes etc), can be registered as trade marks if they are: (1) a sign, (2) capable of being represented graphically and (3) capable of distinguishing the goods or services of one undertaking from those of others. Since 1 October 2017 graphical representation has no longer been a requirement due to the new EUTM Regulation (Regulation No 2017/1001) but that did not apply here.

Despite such non-traditional marks being capable of registration, these have proved notoriously difficult to register, since their inception some 25 years ago, due to the need for them to overcome various hurdles. Essentially they must be indicative of the source or origin of the goods or services concerned and be distinctive of them or at least be capable of being so. In the case of an EUTM this distinctiveness through use must be established EU wide. As above such marks also require to be sufficiently precise and uniform. The rationale for these rules is of course that trade marks give their owners monopolies over their use. Thus if it were possible to register one for say the colour yellow without any further specification this would potentially prevent 3rd parties from all use of that colour in the area of commerce concerned. Whilst therefore it makes considerable sense to be very careful about assessing the merits of such applications before granting them, does this latest Red Bull case perhaps suggest that the restrictions in play have gone too far and, even if not, that the nature of these is not at all clear?

In the case of Red Bull the court ruling of November 30 2017, dealt with two EUTM applications for "energy drinks" in class 32. The first, 2002 application, had a description stating that "the ratio of the colours is approximately 50%-50%". It was...