Wednesday, October 1, 2014

Colour trade marks India

Colour trade marks India

In order to constitute a trade mark, a colour or combination of colours must be capable of distinguishing the goods or services of one trader from those of other traders. If a particular colour of packaging has become distinctive in fact as indicating the goods of a particular trader, there is no reason why it should not be protected by registration. It is conceivable that extensive use of two colours in many different arrangements may result in the colour combination per se becoming distinctive of the applicants’ goods. However, if the colours are used not in a special or particular pattern or arrangement, it is likely to be more difficult to prove that in such cases colour would lend distinctiveness as a badge of origin.

Single Colour

A single colour may be registerable as a trade mark if it is very unusual and peculiar in a trade and is recognized by traders and consumers alike that it serves as a badge of origin for that class of goods. See Dyson Ld’s Trade Mark Application 2003 RPC 47.  As colour per se is not normally used by traders as a means of brand identification, unlike words or pictures, consumers are not in the habit of making assumptions about the origin of goods and services based solely on their colour or the colour of their packaging.  It follows therefore that a single colour will only in exceptional circumstances be capable of denoting the origin of a product or service.  Marks consisting of a single colour will usually be liable to objection under Section 9(1)(a) of the Act because they inherently lack the capacity to distinguish. In some cases single colours may also attract additional objections under Section 9(1)(b) and (c) of the Act if the colour sends a descriptive message or the colour is customary in the trade i.e. the colour RED for fire fighting services, or the colour GREEN for ecological goods/services. There may be occasions where colour applied to the goods themselves may be inherently more distinctive than when the colour is applied to the packaging; for example, GREEN beer may be quite distinctive, yet the colour GREEN applied to a beer bottle or can would be non-distinctive.  The examination of single colour marks requires careful analysis, because there is a public interest in not limiting the availability of colours for other traders. Each case must be assessed individually.

In the UK, a practice has been established to allow marks consisting of colour alone to be graphically represented if they are filed in the form of a written description of the colours(s)(eg dark blue) and are accompanied by the relevant code(s) from an internationally recognised colour identification system, in existence e.g. Pantone®, RAL and Focoltone®. The law or practice in India does not provide for such interpretation. In this connection, the following view expressed in the official practice of U.K. Registry is more relevant to our practice.  “There are limits to what can reasonably be expected of third parties. It must be reasonably practicable for persons inspecting the register, or reading the Trade Mark Journal, to be able to gain an understanding from the graphical representation of what the trade mark is. Representations which are precise but impossible to interpret without costly specialist equipment or services, place too high a burden on third parties and are likely to be rejected because they are not “easily accessible.” Accordingly, a mark defined as “a blue bottle of optical characteristics such that if the wall thickness is 3mm the bottle has, in air, a dominant wavelength of 472 to 474 nanometers, a purity of 44 to 48%, an optical brightness of 28 to 32%” was rejected by Appellate authority in Ty Nant Spring Water Ltd’s Application [2000] RPC 55, because it would require third parties to use a spectrophotometer to ascertain whether a particular colour was or was not covered by the description, and in fact served to veil the identity of the sign (cobalt blue).  The views of the Registry in India are no different from what is quoted above. Strong evidence should therefore, be required to demonstrate factual distinctiveness for registrability of colour marks in India.
Combination of colours

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