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Color Marks – A New Palette in the world of IPR

Why Are Color Marks Desirable?

Media and advertising have over the years taken center stage when it comes to branding and selling a particular product. Gone are the days when a newspaper advertisement or a TV commercial were enough to catch the attention of consumers and turn them into lifelong customers. Today, brands need to create a philosophical bond of sorts with their users, this has propelled the emergence of unconventional trademarks which give the edge to a company when the lines for profit and conversion are so minimal.

From McDonalds’ being recognized through their yellow and red to KFC’s red and white, every other global brand today has some sort of presence that begs for an instant recall whenever  a customer comes across these.  Colors are visually embedded in our brain, often making a stronger impression than any tag line or name, creating much greater recall value.

Photo of KFC outlet, featuring red and white combination.

Why Are Color Marks Controversial?

Color Trademarks have been gaining traction over the years and countries all over the world have started accepting and incorporating them in their laws.  However, they are still among the most debated upon non-conventional trademark, for understandable reasons.

A big reason for this divide is that while trademarking colors helps out advertisers who really put the effort into marketing, primarily corporate giants, it might also send across a message that corporations can get ownership over something universal. Colors cannot really be intellectually created, after all, and all colors are shades and tones of already discovered colors. So should they be given protection in the first place?

What is the Global Consensus on Color Marks?

Article 15.1 of Section 2 of the TRIPS Agreement, focusing on Trademarks, notes the following:

Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

By necessity, global laws are designed to be as broad as possible, so that individual countries can interpret them to meet their specific needs. The clause given above recognizes recognizability in the market as the primary parameter to decide on the distinctiveness of any mark. As colors are inherently non-distinctive, the onus is on the Applicant to prove that the color has acquired sufficient distinctiveness.

For example, when Cadburyapplied for the specific shade of purple used on their products to be trademarked, the argument presented showed how, the products use of the color had created a degree of distinctiveness amongst the masses. Public surveys were submitted as proof of this. However, Cadbury was eventually denied registration in the UK on the grounds of purple being far too non-distinctive.

The Case in India

In India, Section 2 (1) (m) of the Trade Marks Act specifically allows trademarking

a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof

Accordingly, the Courts have noted that in India only a combination of colors are registerable, while single colors are not. This was iterated in the case of Christian Louboutin, where the well-known designer attempted to trademark its famous red-soled footwear and failed. On the other hand, the combination of green and yellow for Deere & Company vehicles was allowed. Additionally, even though there was no official trademark, the distinctive blue color of Parachute Brand Coconut Oil was granted some degree of protection in an infringement case.  

The Trademark Examination Draft Manual does not explicitly preclude color trademarks, however, and noted that they should be examined subjectively and that;

The key issue will usually be whether the proprietor has used the mark distinctively to educate the public that the colour itself is a trade mark.

Accordingly, color marks in India are still in something of a grey area, and each case law connected with it is complicated with additional elements of consideration. There is still a need for a consensus to be drawn on the matter.

Author: Apurva Kumar Das, Legal Intern at PA Legal.

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