EU- THE VALIDITY OF COLOUR TRADEMARKS SUFFERS ANOTHER BLOW

Picture: Wikipedia

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- Wikipedia

For many years, colours have been used to distinguish goods and services as well as a source identifier. However, whether or not colours can be placed in the exclusive preserve of one trademark owner is a point which the international courts are beginning to negate. This is evident from a plethora of cases including the recent Red Bull case

Red Bull sought registration for a mark which was 50% silver and 50% blue in respect of class 32 for energy drinks in 2002. They filed a second application in 2010 for a mark with the description ‘the two colours will be applied in equal proportion and juxtaposed to each other’. Red Bull relied on acquired distinctiveness avenue in order to obtain registration of the trademarks.

However, the registrations were challenged by Optimum Mark on the grounds that the trademarks were invalid as they had not acquired distinctiveness.

2013- The EUIPO Cancellation Division decided that the marks were invalid as they were devoid of distinctive character.

2014- The decision was appealed to the First Board of Appeal which upheld the decision.

Red Bull appealed the case up again to the EU General Court.

2017- The EU General Court decided as follows;

·        That colours and colour combinations can be registered as trademarks under the regulation 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.

·        The Board of Appeal was right to find that the marks registered by Red Bull allowed for a number of different colour combinations.

·        The Court ruled that the marks were not precise or uniform enough to be valid trademarks.

The effect of invalidation of a trademark is that the rights of the proprietor to that trademark would be deemed to have ceased.

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