Telenet’s Yellow Colour Trade Mark Rejected

On 4 February 2014, the Brussels Court of Appeal (Hof van Beroep/Cour d'Appel) (the "Court") refused registration of the colour yellow as a trade mark for Telenet's "triple play" services. In its judgment, the Court applied the principles governing colour marks established by the Court of Justice of the European Union in its Libertel judgment of 6 May 2003 (Case C-104/01).

The Court recalled that the grounds for refusing registration must be interpreted in light of the public interest. To the extent that undistorted competition is of public interest, free and fair competition may take preference over the registration of an exclusive and perpetually renewable trade mark right.

The Court added that the distinctiveness requirement serves to identify the commercial origin of the goods. It will therefore be necessary to determine whether or not colours are capable of conveying specific information, in particular as to the origin of a product or service.