Colour mark

A colour mark is a trade mark consisting of a colour as such, without contours, or of a combination of colours, claimed for particular goods or services. Article L. 711-1 of the French Intellectual Property Code and Article 4 of Regulation (EU) 2017/1001 do not exclude it, but its protection is hemmed in by strict conditions of representation and distinctiveness, because a colour is perceived first and foremost as an element of decoration or presentation and because reserving it restricts the freedom of competitors.

Representation of the colour

The Court of Justice of the European Union holds that a colour as such can constitute a trade mark only if it is represented in a manner that is clear, precise, self-contained, durable and objective, which requires the colour to be designated by an internationally recognised identification code. For a combination of colours, the representation must include a systematic arrangement associating the colours in a predetermined and uniform way. A mere juxtaposition of two colours “in every conceivable form” does not delimit the subject matter of protection and fails this requirement. The filing must specify that it covers the colour as such and not a coloured figurative mark, the scope of protection being very different.

The distinctive character of the colour

Save in exceptional circumstances, a colour has no inherent distinctive character, because the public does not spontaneously associate it with a particular undertaking. The public interest further precludes the availability of colours being unduly restricted for operators offering goods or services of the same type, since the number of colours the public is capable of distinguishing is limited. Protection therefore rests, in practice, on distinctiveness acquired through use, established by intensive, constant and exclusive use of the colour, for a specific market and a targeted public. The absolute grounds for refusal relating to functionality may also apply to a colour, where it results from the nature of the product or gives it substantial value.

Scope and defence of the right

Once registered, the colour mark protects the shade claimed for the goods and services designated, and infringement is assessed by comparing the colour used by the third party, its positioning on the product and the resulting likelihood of confusion. The owner must prove genuine use of the colour as a trade mark and not as mere get-up, and must expect an invalidity action based on lack of distinctiveness, which requires it to produce surveys and dated market evidence. Protection through unfair competition or free-riding remains a useful complement where filing is not possible.

Key points

A colour may be filed on its own, provided it is designated by a recognised code, systematically arranged if it is a combination, and has become distinctive through use for a particular market. Filing makes sense only for a colour used consistently as a sign of origin. Document that use, have it measured by surveys and specify the exact subject matter of the filing, whether the colour as such or a coloured logo.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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