“Colour” your rights or not?

Guest post by Florica Rus*

Over the years, many companies have sought trade mark protection for colours or colour combinations. This strategy turned out to be not a plain sailing.

Since Libertel – C-104/01 and Heidelberger Bauchemie – C-49/02 judgments, colours are recognised as a factor that may lead consumers to a purchasing decision. However, colours are considered to have a limited capacity to communicate an indication of origin to the consumers and being distinctive is not their strength.

On 22 July 2017, the General Court held that three identical rectangular coloured stripes do not make the mark distinctive enough to fulfil the commercial origin function (T-612/15). The figurative mark applied for – EUTM 012880481 (three stripes colour)  for goods in classes 18, 25 and 26, was found to be neither distinctive nor to have acquired distinctiveness through use. The Court illustrated that consumers in the fashion sector are not used to identify the origin of the product based on a colour and three coloured stripes will not be apprehended as an indicator of origin. Continue reading ““Colour” your rights or not?”