According to the existing trademark law color can be recognized as a trademark. Color trademarks are examined in the same way as other more traditional trademarks – words and logos. In other words, registration criteria for colors are the same as for any other trademark type. In order to be registered, any trademark (including color) must be (1) distinctive and (2) capable of being represented in a clear manner. Whereas the second requirement of representation can be fulfilled by the reproduction of the colour together with a specific recognised colour code, the criteria of distinctiveness can be a challenge.

Trademark is distinctive when it is perceived by customers as a sign that is associated with a particular company. However, due to the nature of colors and their limited spectrum, it is a well-established belief that color trademarks cannot be inherently distinctive. The registration of a color trademark will often be rejected because:

• a color is merely a decorative element or represents the nature of the goods;
• a color can be technically functional or usual for certain goods (e.g. the color red for fire extinguishers);
• a color may indicate a particular characteristic of the goods, such as flavor (e.g. yellow for lemon flavor).

In the EU, single-colour trademarks are normally seen as non-distinctive for any goods and services, except under exceptional circumstances. This is due to the fact that a number of colours is limited, and no one should receive a monopoly for one color. Moreover, competition considerations should be taken into account.

Nonetheless, color can become protectable as a trademark if significant proof of acquired distinctiveness / customer recognition is provided. Among other factors that can facilitate the registration of the colour mark in the EU are (i) a very restricted number of goods/services covered by the trademark application; (ii) a very specific market sector of the applicant; (iii) a color is extremely unusual for certain types of goods.

There are a few examples of successful registration of colors in the EU, in particular:

• the color yellow the rubber teats for milking installations, which are typically sold in black and which are used only by a small group of target consumers (farmers).
• the color green for sheets of polystyrene extruded foams for insulation in building construction and civil engineering against heat, cold and sound.
• the color violet for chocolate.

Recommendations

It is important to demonstrate that a color is a badge of origin of a particular company, it is different from the competitors and unusual in the market sector. To increase the chances of success, it is recommended to:

• collect evidence of substantial prior use, including customer surveys;
• consider a combination of a color with a word;
• consider a registration of a 3D mark covering a specific product;
• consider applying for a position trademark where color is used at a certain position of the product.