The „Colour Management Café“ is a regular online event organised by Fogra, which I attended by telephone. Franz Gernhardt has been working as a lawyer at the renowned law firm Bird & Bird LLP since 2004. He gave a detailed presentation on the topic of „colour trademarks“.
Colour marks belong to the category of non-technical IP rights, such as word marks, figurative marks, picture marks and 3D marks. Recently, there have also been atypical trade marks such as sound marks (e.g. heute-Nachrichten, Wetten dass..., Merci), motion marks, multimedia marks, hologram marks,... and colour marks. These exist in a purely flat (contourless) form of a single colour and also as a combination of several colours.
What should I bear in mind when applying for a colour mark?
First of all, the colour in question must have a so-called „reputation“, i.e. it must be known to a predominant proportion of people in connection with the product class for which the trade mark is registered. One example is the violet colour of Milka chocolate.
Secondly, the colour must be specified exactly in the trademark application. The Pantone specification is usually used for this, but RAL, HKS or CIELAB are also possible.
Mr Gernhardt reported that the courts have very different attitudes towards the registration of colour marks. While some are happy to allow colour marks, others have hardly any chance of registering them. He also explained that in the first phase, when colour marks could be registered, there was more or less a run on colour marks. In the meantime, this has calmed down and the number of colour marks has remained constant for several years.
DPMA colour mark search
The German Patent and Trade Mark Office allows anyone to conduct trade mark searches free of charge and without registration or membership. If you search for colour marks applied for or registered, you get 639 hits. Well-known examples:
Kraft Foods, 3M, Ferrero, Red Bull, Husqvarna, Hilti, Makita, Schwan-Stabilo, WD-40, BMW, Sparkasse, Mars, RTL, BP, O2, Deutsche Post, UPS, Hipp, En, Enercon, OBI, Berlag C.H. Beck, Deutsche Bahn, Financial Times, Deutsche Telekom, Lidl, FC Barcelona, Würth, Bosch,... But there are also numerous unknown brands, e.g. a regional Oldenburg taxi company.
Trade mark search at the DPMA
(Enter „Colour mark“ as the „Mark shape“ here).
The search result in the form of an Excel file.
Comment
That colour trademarks would „protect“ someone from misuse of their service is a one-sided and glossed-over assessment by the trademark owner. In fact, colours and colour combinations are removed from general use in certain economic sectors in this way. This is an impoverishment of our world and a curtailment of our freedom. Where will we end up if, in 50 years„ time, not only cosmetics manufacturers but also many suppliers have to be careful if they want to use a beautiful, rich ultramarine blue because other companies have achieved “commercial validity" for it?
How could anyone think that a colour belongs to someone? Individual colours are not a creative achievement of the brand owner, but a gift of nature. According to modern scientific definitions, colours are nothing more than sensations that take place in our heads - individual experiences. Claiming ownership of this, even if this is only the case in certain economic sectors, is ethically questionable and an outgrowth of our property-orientated society.
Holger Everding
Links
Bird&Bird profile Franz Gernhardt, LL.M.
Definition of colour by Wikipedia
„A colour is a sensory impression conveyed by the eye and brain, which is caused by light(...) Colour perception is a subjective sensation.“
Picture credits
Nivea: Wikimedia Commons, Justin Blümer CC-BY-2.0
Manner: Wikimedia Commons, Tokfoto, CC-BY-SA 4.0
Post-It: Wikimedia Commons, Pavel Krok, CC-BY 2.5
UPS: Wikimedia Commons, Flor!an, CC-BY-SA 4.0
Milka: Wikimedia Commons, Miala, CC-BY 2.5
John Deere: Wikimedia Commons, Mammut74, CC-BY-SA 3.0
1 comment
Very informative article. I didn't know that there are such things as colour marks....