Fogra Colour Management Café:
How to protect colour trademarks?
The “Colour Management Café” is a regular online event of Fogra, which I attended by telephone. Franz Gernhardt has worked as a lawyer in the renowned law firm Bird & Bird LLP since 2004. He presented the topic “colour brands” in detail.
Colour marks are included in the non-technical property rights, such as word marks, word picture marks, figurative marks and 3D marks. Recently, there are also untypical marks such as sound marks (e.g. today’s news, bets that…, merci), motion marks, multimedia marks, hologram marks,… and even colour marks. These exist in purely flat (contourless) form of a single color and also as a combination of several color tones.
What has to be considered for a colour mark application?
First of all, the colour in question must have a so-called “reputation”, i.e. it must be known to a predominant proportion of persons in connection with the class of products for which the trade mark is applied for. An example is the violet 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 are very different in their approach to the application for colour marks. While some are happy to allow colour marks, others have hardly any chance of registration. He also stated that in the first phase, when colour marks could be registered, there was virtually a run on colour marks. In the meantime, this had calmed down, and the number of colour marks had remained constant for several years.
DPMA colour mark search
The German Patent and Trademark Office allows anyone to conduct trademark searches free of charge and without registration or membership. If you search for applied for or registered colour trademarks, you will 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 also numerous unknown brands are among them, e.g. a regional Oldenburg taxi company.
That colour marks would “protect” someone from misuse of their performance is a one-sided and euphemistic assessment by the trademark owners. Rather, colours and colour combinations are in this way withdrawn from general use in certain economic sectors. This is an impoverishment of our world and a curtailment of our freedom. Where will we be 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 “traffic recognition” for it?
How can you get the idea that a colour belongs to someone? Individual colour shades are not a creative achievement of the trademark owner, but a gift of nature. According to modern scientific definition, colours are nothing more than sensations that take place in our heads – individual experiences. To claim ownership of them, even if this is only the case in certain economic sectors, is ethically questionable and an excrescence of our possessive society.
Definition of color at Wikipedia
“A colour is a sensation conveyed by the eye and brain, which is caused by light (…) The perception of colour is a subjective sensation.”
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