Jurisprudence: Trademarks consisting of a colors combination

Tribunal of the European Union – joint cases T101/15 et T102/15 – November 30, 2017

RedBull GmbH v. EUIPO and Optimum Mark sp.

The German company RED BULL holds the following European Union trademarks registered for “energy drinks” in class 32:

  •  No. 002534774 whose description is " Protection is claimed for the colors blue (RAL 5002) and silver (RAL 9006). The ratio of the colors is approximately 50%-50%".
  •  No. 009417668 whose description is " The two colors will be applied in equal proportion and juxtaposed to each other - blue (Pantone 2747 C), silver (Pantone 877 C)".

Both marks were registered on the basis of distinctive character acquired through use. Applications for invalidity filed against these signs are therefore not based on the absence of distinctive character, but on a breach of the requirements concerning the graphic representation of the mark which must be clear, precise, self-contained, easily accessible, intelligible, durable and objective and must be systematically arranged by associating the colors in a predetermined and uniform way.

 

The Cancellation Division of the EUIPO recognized these well-founded claims and declared the trademarks in question invalid based on the fact that they do not exhibit the “qualities of precision and uniformity” required by the texts because they allow "numerous different combinations" which do not allow consumers to memorize a particular combination of colors. Moreover, these brief descriptions do not allow third parties to "know the scope of protection" in question. This position has been validated by the Tribunal of the European Union.

 

ADVICE FROM LAVOIX EXPERTS

 

This decision, which the purpose is to avoid obtaining an undue competitive advantage for a trademark holder and to not restrict the availability of colors, will therefore oblige compliance with these conditions at the time of filing.

It is therefore necessary to ensure that the systematic arrangement of these colors is represented graphically or that a description, which is then an integral part of the trade mark, specifies the arrangement of the said colors in such a way that the scope of protection requested is clearly understandable when filing a trademark application consisting solely of a combination of colors.

 

Contacts : Marion LAPERRIERE and Béatrice DAUBIN

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