Colour registration, or a colour trademark, is a non-conventional trademark in which one or more colours are fundamental to the functioning of the mark. Where a colour is used as a trademark to aid the identification of brands, products of services in a commercial and unique capacity, that colour can be registrable under certain jurisdictional trademark laws. In order to better understand the laws surrounding colour registration in your country of domicile, it is advised that you seek the advice and guidance of a consultancy firm that specializes in trademark law.
Can a colour qualify for trademark registration?
Not all intellectual property offices (IPOs) across the globe will legally recognize or qualify colours as trademarks. It is therefore essential that when seeking colour registration under trademark law, the owner of the colour mark must research which IPOs will accept their registration application.
The recognition for colour trademarks is growing and this can be concluded as a result of the World Intellectual Property Organization (WIPO) broadening the legal definition of what a trademark is. WIPO declare that a trademark must be distinguishable from other marks and must be capable of graphical representation. Under US trademark law, colours can be registered in their entirety, and this is evident from case law Qualitex Co. v. Jacobson Products Co., Inc, 1995. However not all countries accept this stance.
Usually, a country’s IPO will accept applications for colour registration where the owner can prove the colour has developed a second meaning. This is clearly defined in the case of Christian Louboutin v. YSL, in which Louboutin registered the colour red for the soles of their shoes, and as such, sued YSL for introducing a similar re-soled shoe. The red-soled shoe is immediately identifiable as a Louboutin shoe and this qualifies under the ‘second meaning’ rule. Provided a owner can prove the public and target markets associate a colour with the product it represents, there is a good chance that it can be registered as a trademark.
Tests and strategies used to establish if a colour can seek trademark registration, include;
- Colour saturation advertising (brand identity enhanced through use of colour saturation)
- Look-for advertising (reinforcing colour in advertising to force public to associate the colour with the product)
Within the EU, registering a trademark through OHIM allows for mark owners to gain legal protection over their intellectual property rights across all 27 member states. With regards to colour registration as a community trademark (CTM) can be achieved where the colour mark is capable of graphical representation, and where an international colour code is used, for example RAL or Panton. Effectively, where the EC can prove a colour provides enhanced distinctiveness to a mark, brand or product it represents, it can be registered.
Due to most countries requiring trademarks to be capable of graphical representation, registering a colour may pose difficulties in achieving this. As such, it is advised to speak with a trademark attorney or professional consultancy firm to establish whether you can obtain colour registration.
View our Trademark Registration service page to find out how Starting Business can assist you.