Since the judgment of the Court of Justice of the European Union from 2004 – in the Heidelberger Bauchemie case – we know that a colour combination may be eligible for trade mark protection. A colour sample, description and internationally recognised colour code are required as well as a ‘systematic arrangement associating the colours concerned in a predetermined and uniform way’. In addition, the public must actually perceive the colour combination as a trade mark.
The Red Bull case was about the aforementioned colour combination, supplemented by the description “protection is claimed for the colours blue (RAL5002) and silver (RAL 9006). The ratio of the colours is approximately 50%-50%”. In a later application, this description was changed to “the two colours will be applied in equal proportion and juxtaposed to each other”; in this application, the colours were referred to as blue (Pantone 2747 C) and silver (Pantone 877 C).
The ESC ruled that this colour sample in combination with this description was not sufficiently precise to be eligible for trade mark protection. The court opined that such representations would allow numerous different colour combinations which would not permit the consumer to perceive and recall a particular combination, thereby enabling him to repeat with certainty the experience of a purchase.
The EGC’s ruling seems logical. After all, the colours are more or less designated in the abstract and the description does not clearly show how the colours are combined. It should be noted that the EGC stressed that colour per se marks are effectively registrable as European Union trade marks. In other words, an applicant is not required to explain exactly how a colour trade mark is used in practice.
The question is then, when does a colour trade mark qualify as valid? Would it have been sufficient if the description had been more precise? Or would it have been sufficient if the colours had been represented graphically as they are actually being used on the can, i.e. juxtaposed and oppositely inclined, but without a precise description of the proportion between the colours? Or will a mere representation of the colours as they are used never be sufficient and is it the description that should show the proportion between the colours?
This is an interesting question, all the more so since Red Bull has managed to register the following colour trade mark, in which the representation of the colour combination is more specific.
The description here is as follows: “Protection is claimed for the colours blue (Pantone 2747 C) and silver (Pantone 877 C), as shown in the colour trade mark. The ratio of the colours is approximately 50%-50%.” Revocation action is also pending against this colour trade mark, in which the colours are arranged as they are being used. The EUIPO has yet to decide on this matter. To be continued.
Source images: EUIPO