4u Created
Image default
Law \ Legal

Protecting Colour Trademark – A Red Herring


Trademark

In the world we live in, color is significant. Color has the power to influence one’s thoughts, actions, and reactions. It can irritate or calm your eyes, increase or decrease your blood pressure, and control your desire. The colors of a brand can reveal more about the company than one might think. By triggering the appropriate emotions, color psychology helps a company develop trust and familiarity. According to studies, the color of a product influences 60 to 80 percent of a customer’s purchasing decision. But, a person cannot just own a color. The color of a brand is not the same as the color trademark. A firm can’t register a color in its name. However, a firm can possess a certain pattern of a specific color, for example, Coca-Cola does not own the color red, but it does own the pattern or shape in that color, and so no one can reproduce it.

It’s no wonder that the world’s most well-known brands such as Bata, Coca-Cola, Red Chip, Parachute, etc. have deep ties to their logos. Even when there is no text on them, their colors tend to represent their logo. This is due to the power of color and its capacity to promote brand recognition while eliciting the desired reactions.

Color Trademark

A trademark can be limited to a specific color or color combination, according to Section 10 of the Trade Marks Act. Such color restrictions will only be permitted when evaluating the mark’s distinctive character. If no specific color has been claimed, it is presumed to be registered for all colors. If a mark is being registered for a combination of colors and this is the distinguishing feature of the mark, it should be stated at the time of filing.

When a specific color is claimed, however, an applicant must provide evidence that the claimed color combination or color is uniquely connected with the applicant or exclusively designates the applicant’s goods. If the color used is widely used in trade, claiming distinctiveness over the color may be challenging. For example, whereas blue as a trademark for a drink may be distinctive, the color blue as a trademark for bottle packaging would be non-distinctive.

When one thinks of Cadbury chocolates, one immediately thinks of the purple box that encases a delicious bar of chocolate. In 1914, Cadbury picked this precise color to honor Queen Victoria, as it was her favorite. Cadbury chocolates have been associated with a purple shade known as

Pantone 2685C since 1995 when the company chose this color for its chocolates, and it has since been a symbol of the company’s chocolates. Cadbury opted to trademark Pantone 2685C’s purple shade in 2004 so that it could be used on a wider range of candy goods created under the Cadbury label. It applied for a trademark with the UK Trademark Office. Cadbury’s attempt, however, did not go down well with Nestle, its direct competitor. Nestle claimed that color could not be protected and hence opposed Cadbury’s application. Cadbury, on the other hand, deftly refuted all of the charges, claiming that the corporation had utilized Pantone 2685C’s purple tint since 1914. Nestle, on the other hand, lost the fight in 2011.

The High Court of the United Kingdom declared in 2012 that because the public associated purple with Cadbury’s milk chocolates, the corporation is entitled to a registered trademark for that color. However, the judgment did not apply to Cadbury’s black or white chocolates. Nestle; on the other hand, was dissatisfied with the judgment that challenged the decision in 2013. In the end, Nestle prevailed in the legal battle, and Cadbury lost its purple color trademark. Appeal Judge Sir John Mummery declared that giving Cadbury exclusive rights to the color would be unfair, overturning an earlier High Court judgment in Cadbury’s favor. He went on to say that a color trademark would give Cadbury a competitive advantage over its competitors, putting Nestle and others at a disadvantage.

The High Court of the United Kingdom declared in 2012 that because the public associated purple with Cadbury’s milk chocolates, the corporation is entitled to a registered trademark for that color. However, the judgment did not apply to Cadbury’s black or white chocolates. Nestle; on the other hand, was dissatisfied with the judgment that challenged the decision in 2013. In the end, Nestle prevailed in the legal battle, and Cadbury lost its purple color trademark. Appeal Judge Sir John Mummery declared that giving Cadbury exclusive rights to the color would be unfair, overturning an earlier High Court judgment in Cadbury’s favor. He went on to say that a color trademark would give Cadbury a competitive advantage over its competitors, putting Nestle and others at a disadvantage. (Nestlé SA v Cadbury UK Ltd.)

In the case of Colgate Palmolive Co. Limited & Another v/s Patel & Another, Colgate was seeking an ad-interim injunction to prevent the defendant (Anchor Health & Beauty Product) from using its trade dress and color combination of one-third red and two-third white, in a specific order, on the compartment of its item, i.e., Tooth Powder, and thus alleged that the defendant (Anchor Health & Beauty Product) had committed the offense of passing off by adopting the color blend of “red and white.”

The court decided that a customer’s general perception of the merchandise’s source and origin is based on the visual impression of a color combination, compartment shape, packaging, and other factors. It amounts to passing off if an uneducated and ignorant customer becomes perplexed about the source and origin of goods that they have been using for longer periods by receiving the items in a holder with a specific shape, color blend, and appearance.

Conclusion

A trademark can be applied to a single color. It is feasible to register the color in many countries, including the United States, Canada, the United Kingdom, and the European Union, but not in others (especially Asia, Africa, and the Middle East), no matter how much you use it there. In the course of business, a single company may have the exclusive right to use a specific hue on specific products or services. Even when it is conceivable, registering such a color is extremely difficult. Because there is a public interest in not monopolizing the supply of colors for use by other traders or businesses, trademark color registration is difficult to obtain. However, if the owner can establish that customers’ perceptions of color have changed as a result of the colors, with longstanding and broad use in its products and services, the owner may be able to trademark that color.

So, if you want to trademark the color, you’ll need to make your customers recognize your brand the moment they see the color in conjunction with your product or service. This could be quite difficult to accomplish (impossible in most cases). It is both a complex procedure and a matter of luck when a certain brand becomes so well-known in the industry that the color becomes the product’s identity. If the mark becomes well-known, this gets easier.

As a result, it is evident that for single-color trademarks to be registrable there must be a “plus” factor or secondary meaning to the color when it is attached to the goods because a single color cannot stand out on its own.

Submitted by Shreya Shekhar, a law graduate of New Law College, Bharati Vidyapeeth, Pune.



Source link

Related posts

Protecting the Fashion Industry – A comparative analysis of Intellectual Property Protection (IPP) in India and the Western World

Sylvia Franklin

Anti-Dumping Law and Practice in India – A Critical Study

Sylvia Franklin

The Villainy Saga of Identity Theft – Prevention of Identity Theft in the Post Internet Era

Sylvia Franklin