3M Co., 90 USPQ2d 1425 (TTAB 2007), the purple colour was considered functional for coated abrasives, because “n the field of coated abrasives, color serves a myriad of functions, including color coding, and the need to color code lends support for the basic finding that color, including purple, is functional in the field of coated abrasives having paper or cloth backing.” Saint-Gobain Corp. Courts have dealt with the matter, and colours have been held functional for various purposes. If a colour is held functional for any product, then it is not registrable or protectable as a trademark. The Lanham Act specifically states that "o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it (e) Consists of a mark which (5) comprises any matter that, as a whole, is functional." 15 U.S.C. The trademark owner must show that the trademark colour has acquired substantial distinctiveness, and the colour indicates source of the goods to which it is applied. In 1995, the United States Supreme Court further acknowledged that a colour could be used as a trademark in the case of Qualitex Co. In the United States, the United States Court of Appeals ruled in 1985 that Owens Corning had the right to prevent competitors from using the colour pink in their insulation products, thus making Owens Corning the first company in the United States to trademark a colour. Cadbury UK Limited (2012), but on appeal the Court of Appeal reversed the decision in October 2014. In a recent case, the High Court of Justice, Court of Chancery held that an application to register such a trade mark was permissible in Société des Produits Nestlé S.A. Thus, for example, while a trade mark described simply as a colour is registrable, a trade mark described as consisting "predominantly" of a particular colour is not. However, an applicant's ability to register colour trade marks is limited by several considerations, in line with European Union jurisprudence. In the United Kingdom, trade marks consisting of colours or combinations of colours can be registered. In most cases, a colour trademark will be registered only after an enhanced distinctiveness through use in the EC has been proved. This definition generally encompasses colour marks, and therefore an applicant for a CTM or a national trademark in the EC may define their colour trademark using an international colour code such as RAL or Pantone. In Libertel Groep v Benelux Merkenbureau (case C-104/01) dated the ECJ repeats the criteria from Sieckmann v German Patent Office (case C-273/00) that graphical representation preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. 40-94 of 20 December 1993 ("signs of which a Community Trade Mark may consist") relevantly states that any CTM may consist of "any signs capable of being represented graphically.provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings". In the European Union, Article 4 of Council Regulation (EC) No. Requirements are set out in the Trade Marks Office Manual of Practice and Procedure issued by IP Australia. The application might be refused if a single colour is claimed as it is difficult to prove distinctiveness with just a single colour. In India, a colour mark can be registered provided the consumers directly link the colour with the brand. This category of trade marks is distinguished from conventional (word or logo) trade marks that feature a specific colour or combination of colours the latter category of trade marks present different legal issues. This issue was addressed by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, which broadened the legal definition of trademark to encompass "any sign.capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)).ĭespite the recognition which must be accorded to colour trade marks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue. However, it has traditionally been difficult to protect colours as trademarks through registration, as a colour as such was not considered to be a distinctive 'trademark'. In recent times colours have been increasingly used as trade marks in the marketplace. A colour trade mark (or color trademark, see spelling differences) is a non-conventional trade mark where at least one colour is used to perform the trade mark function of uniquely identifying the commercial origin of products or services.
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