UK: Colour Marks: The Issue Of Trade Marking Colours

Last Updated: 25 April 2018
Article by Jack Kenny

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'.

As a result, it was not possible to ascertain the exact way in which the colours would be used based on their descriptions, and the marks were therefore not sufficiently precise.

Other traders, as well as the public and relevant authorities, need to be able to determine the exact rights of a trade mark owner from inspecting the trade marks register. Therefore, when applying for a trade mark for a colour or a combination of colours, it is vital to ensure that any descriptions for the mark are clear and precise, and that any colour combinations are arranged in a 'predetermined and uniform way'.

Good for the sole? A new Opinion in Louboutin

The famous red soles of Christian Louboutin's high-heeled shoes have been the subject of a number of trade mark cases around the world. Louboutin has registrations in the UK and the EU, amongst other countries, for the colour red applied to the sole of a shoe. In the EU, his registration is currently facing invalidity proceedings which have been referred to the Court of Justice of the European Union.

In his recently issued Opinion on the case, Advocate General (AG) Szpunar firstly confirmed that the Louboutin registration is not simply a colour mark: in fact, the registration seeks to protect the shape of the goods, as well as to protect a colour in relation to that shape.

Under Article 4(1)(e)(iii) of the new Trade Marks Directive (formerly Article 3(1)(e)(iii)), a mark should not be registered or should be declared invalid if it consists exclusively of 'the shape, or another characteristic, which gives substantial value to the goods'. AG Szpunar's Opinion confirms that this prohibition is capable of applying to a sign combining both colour and shape, such as Louboutin's mark. Thus, a key question for the Court of Justice to consider is whether the sign – the red sole of a high heeled shoe - merely gives substantial value to the shoes themselves.

In a press release, Louboutin argues that the AG's Opinion shows support for the trade mark, rather than threatening it. According to the fashion house, the combination of the shape and the colour in itself is 'not intrinsically valuable'. Instead, the mark has acquired a significant value because of the company's marketing efforts and the public association of the red sole with Louboutin.

It will be interesting to see the outcome of the Court's decision in Louboutin, but for now the case serves as a reminder of the difficulties in obtaining valid trade mark protection for a colour, even when a trader has used it extensively and acquired a reputation associated with it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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