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EGC – Stringent requirements for colour combinations as trademarks

May 2018

Combinations of two or more colours need to be precisely defined for them to be capable of being registered as a colour trademark. That was the verdict of the General Court of the European Union (EGC) (Az.: T 101/15).

A producer of energy drinks was dealt a blow before the EGC. The former cannot have its colour combination made up of the colours blue and silver registered as a colour trademark and protected. Although it is possible as a matter of principle for colour combinations to be registered as a trademark, we at the commercial law firm GRP Rainer Rechtsanwälte note that the combination of colours has to be precisely drafted and sufficiently distinguish itself from other products. Yet the EU Court held that this adequate definition had not been met in the case in question, ruling in its judgment of November 30, 2017 that colour mark was not distinct enough.

The beverage producer’s blue / silver colour combination had already been registered as a European Union trademark. A competing company raised an action against this, and the European Union Intellectual Property Office (EUIPO) ruled in its favour. The latter concluded that the specifications were far too vaguely formulated. The ratio of the two colours was specified as being approximately 50:50, and it was noted that the colours were side by side. The EGC also concluded that this was not enough, stating that this left room for several combinations that could give rise to a completely different overall impression. The relevant specifications were said to be insufficiently precise for registration as a trademark.

While it is certainly possible for two or more colours to be capable of being registered as a trademark, for this to happen they need to be linked with each other in a particular ratio and a particular form so that consumers are able to identify a particular combination as a trademark. That was not the case here.

Trademarks are of great value to businesses, but before a symbol or sign is registered as a trademark it ought to be assessed whether it meets the necessary requirements and, for instance, distinguishes itself sufficiently from the products and services of other businesses.

Lawyers who are experienced in the field of intellectual property law can advise businesses on all matters pertaining to trademark law.

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