This article is authored by Sakshi Shah, a second year B.A. LL.B. (Hon’s) student at the Jitendra Chauhan College of Law registered under Mumbai University.

Introduction:

In today’s competitive world the fashion industry is not just focusing on branding its company’s logo or name but is focusing on creating a holistic identity of their company. With changing times, colour trademarks are gaining popularity in the dynamic trademark world. Colour as a branding aspect is rising in India, with an aim of acquiring and attracting more costumers as their colour logo differs a company from others. A colour trademark  is a non-conventional trademark where in the trade mark function of uniquely identifying the commercial origin of goods or services is performed by at least one colour.  

From Tiffany Blue to Louboutin Red, some of the world’s most iconic fashion houses have successfully trademarked colours, by marking as symbols of exclusivity and prestige. The idea behind the introduction and usage of colour trademarks has sparked debate in the legal and fashion communities. This blog explores the legal framework behind colour trademarks in fashion, by understanding the concept of colour trademark, analyzing the landmark cases, interpreting the legal framework of different countries, and the challenges faced while enforcing these rights. Can a single colour be owned by a brand, or should it remain as a part of the public domain? That is the main fundamental question explored through this blog.

UNDERSTANDING COLOUR TRADEMARKS:

The primary objectives of a trademark are not only to foster to safeguard the manufacturer’s goodwill and reputation, but also to prevent the public from being deceived about the origin of their goods. A colour trademark which is also known as the company’s mark, is a symbol or logo that a company uses to identify its brand and links the brand with a particular colour. With the passing time, many industrialists and entrepreneurs have started using these colours and its combinations to attract more customers. As through this branding technique, the customers relate more to the goods which helps company to increase the market of a particular source and also aim to exclude others from receiving any benefit accrued from this unique mark.

The Trademark Act, 1999 introduced in India marks as a cornerstone of trademark laws in the Indian legal system. Under this law a “single colour” or “combination of colours” is capable of being registered as a trademark. The usage of colours as trademarks in the marketplace has rapidly grown in the recent years. For instance, Cadbury a chocolate candy wrapped in purple, and Tiffany & Co. associated with blue colour. Through strategic marketing, these companies have successfully used colour trademark to distinguish their products from competitors and have a competitive advantage. 

LEGAL FRAMEWORK FOR COLOUR AS A TRADEMARK IN DIFFERENT JURISDICTIONS:

USA:

In USA, trademark registration and protection are governed by The Lanham Act. In one of the leading case of Qualitex Co. v. Jacobson Products Co., the Supreme Court held that the colour alone can be eligible for trademark protection where it has acquired distinctiveness in the minds of the consumers. The U.S. Patent and Trademark Office applies strict criteria while evaluating colour trademark applications and the essential requirement entail that the colour can’t serve a functional purpose.

EUROPEAN UNION:

Article 3(3)(f) EUTMIR provides the regulation for a colour trademark as:

1. If the trademark is for a single colour without any outlines, it should be represented by providing a sample of the colour, along with a specification for using a universally recognized colour code.
2. If the trademark comprises only a combination of colours without any outlines, it should be represented by displaying how the colours are arranged in a systematic manner, along with specifying the colours using a universally recognized colour code.

INDIA:

A colour or combination of colours can be trademarked in India under Section 2(1) of the Trademarks Act of 1999, which defines a trade mark as a graphically expressed mark that easily distinguishes goods or services from others, and is unique and distinctive. In India, a colour can be registered as trademark provided that the consumers directly link the colour with the brand and it is not difficult to prove distinctiveness with just a single colour.

In the case of Colgate Palmolive Company v.  Anchor Health & Beauty Care Pvt. Ltd, Colgate sought an interim injunction to stop Anchor Health’s use its colour scheme that contains one-third red and two-thirds white on toothpaste packaging. In this instance, the Court held that Colgate was unable to establish a trademark solely based on the use of the colour red on toothpaste packaging. It also highlighted the fact that a colour has a distinct association with a brand.

Also in another case, Cadbury U.K. Limited v. The Comptroller General of Patents, Designs, and Trademarks & Societe Des Produits Nestle S.A, it was established that the manufacturer of milk chocolate’s distinct violet (Pantone 2865C) packaging has a distinctive look and the same was confirmed through a poll conducted by the public which later lead to an ongoing legal battle with Nestle.

CHALLENGES IN REGISTERING COLOUR TRADEMARKS:

• Registration of Trademarks for unconventional is more complexed as compared to conventional trademark.
• The determination of non-functionality and distinctiveness of a single colour mark can be subjective.
• The registration of non-traditional trademarks is not explicitly addressed in India’s legislation so it may become challenging to register.
• Issue of free competition
• It is quite challenging to enforce colour trademarks.
• Colour trademarks may have a more limited scope compared to traditional trademarks, which may lead to ongoing arguments pertaining to certain colours in an industry.

CONCLUSION:

The world is in a state of constant evolution, in this quest there is an emergence of new branding strategy that is colour trademarks which can be registered under Trademark Act,1999. By registering a single colour or colour combination as a trademark, there is a chance to elevate the brand image, gain competitive advantage over other competitors, and attract more customers. The landscape of colour trademarking across various jurisdictions such as the United States, European Union, and India points out the emergence of registering a colour trademarks and various laws pertaining globally.

However, with this comes a lot of challenges like non-functionality, limited scope, and distinctiveness. It is essential to ensure that your colour trademark meets the criteria of not only distinctiveness which is an inherent quality that allows a trademark to stand out from the outset but also secondary meaning which occurs when consumers associate a colour with a specific brand. Companies can consult trademark attorney to select, market, and promote their colour in order to acquire distinctiveness. In conclusion a single shade of colour can be trademarked.

End notes:

1. A trademark is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from others. The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark.
2. Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995)
3. Palmolive Company v.  Anchor Health & Beauty Care Pvt. Ltd. 2003 (27) PTC 478 Del
4. Cadbury Uk Limited V. The Comptroller General of Patents Designs and Trademarks & Société Des Produits Nestlé S.A. (Case No: A3/2016/3082)