The case: The protection of colours as a brand is not easy to obtain. You’ll no doubt recognise the famous beverage cans from Red Bull:
The design is made up of a typical blue/silver colour. Red Bull wanted to protect this coloured image of the cans as a Union trade mark for all possible shapes of can. Its lawyers therefore registered two colour marks for energy drinks and reproduced the colours abstractly as follows:
Then, in order to determine the precise subject matter of the protection, they described the marks as follows:
First mark: ‘Protection is claimed for the colours blue (RAL 5002) and silver (RAL 9006). The ratio of the colours is approximately 50%-50%.’
Second mark: ‘The two colours will be applied in equal proportion and juxtaposed to each other.’
Due to these entries, the competition should not have used a 50-50 combination of the colours blue and silver in the design of its products. The marks were indeed registered. However, there was resistance towards them. The competitor saw itself as handicapped and demanded that the marks be deleted. The General Court of the European Union agreed with the competitor.
Colours are normally a simple property of things. Even in the specific field of energy drinks, colours and combinations of colours are generally used for their attractive or decorative effects, rather than to convey any meaning. Colours or combinations of colours may become trade marks only if they are perceived by the public as signs relating to goods or services. A graphic representation consisting of two or more colours, designated in the abstract and without contours, has to be systematically arranged by associating the colours concerned in a predetermined and uniform way.
The descriptions of the two brands did not meet this requirement. The 50% distribution in the first application covered any conceivable form of blue and silver in the ratio of 50% to 50%. The word ‘juxtaposition’ of the colours in the second application was not specific enough. For example, the ‘juxtaposition’ entry not only covers the above can design with oblique stripes, but also designs with vertical stripes. It is also imprecise and unclear.
Neither consumers nor trade were therefore able to identify exactly what Red Bull’s brands were supposed to be – nor could they remember them. And of course the scope of protection of the trade marks was also unclear. The brand was not able to fulfil the requirements for a sign, which must be precise in order to be able to represent the products of a company.
The General Court stressed that even if the representation or the description of the precise arrangement of colours helped to make a colour per se mark more akin to a figurative mark, the subject matter of the protection afforded by those two categories of mark would remain distinct. A specific colour mark may also be applied without contours over the entire surface of the goods covered by it, irrespective of their shape or packaging. This would not be possible with a figurative mark that only captures a specific image. This would be limited to the specific image reflected in the register, General Court, T-101/15 and T-102/15, confirmed by the Court of Justice of the European Union, C ‑ 124/18 P.
Learnings: Check whether you can enhance the goodwill of your company by protecting its corporate colours. However, remember that colours and combinations of colours as such can only in exceptional cases be monopolised as trade marks. The distribution of colours must be specified in the description of the mark in a clear, precise and intelligible manner. In any case, it is worth investigating the opportunity to obtain a colour mark when considering one’s options for protection.