Trademark Protection for Colour Marks

Any word, label, name, device, brand, ticket, signature, heading, letter, numeral, the shape of products, packaging, the combination of colours, or any combination thereof may be registered as a trademark in accordance with Section 2(1)(zb) of the Act, provided that the same satisfies the criteria of distinctiveness and graphical representation. This includes any combination of the aforementioned.

However, complexities and issues come up in situations that fall beyond the purview of conventional or traditional trademarks. In these circumstances, it is difficult to register a trademark in order to be awarded an exclusive status, therefore this is where the complications and issues occur. A few well-known colour trademarks are the combination of golden and brown used by Ferrero Rocher, the colour purple used by Cadbury, the colour blue used by Tiffany & Co., and so on.

India's Legal Framework for Color Trademarks

The words "trademark" and "mark" both have definitions that include the phrase "mix of colours" or "any combination thereof." According to the Act, a colour is not intrinsically distinguishable; nonetheless, a colour combination might obtain uniqueness and become eligible to be registered as a trademark if it has gained sufficient significance through time. The only way for a one-of-a-kind combination of colours to be granted trademark protection is if it can be demonstrated that the combination in question is closely associated with the brand or product in question and that the brand or product can be easily identified by using the particular combination in question.

The use of the colours in such a manner that they serve the trademark function of distinctly or uniquely identifying the commercial origin of the items or services in issue is required in order to provide evidence that a proposed colour trademark is distinctive or unique. Because the general public is better able to connect to the goods or services, the use of a distinctive or unique mix of colours helps to do so. This, in turn, increases the market value of a particular source and prevents others from reaping the advantages of the distinctive mark.

Trademark Application for Colour Mark

When we talk about the process of filing a Trademark Application for a colour mark, the applicant needs to provide evidence demonstrating that the colour or combination of colours is solely associated with him, and that the general public associates the same with the products or services that are specified in the application. This is because the general public associates the same colour or combination of colours with the goods or services that are specified in the application. The piece of proof may be supplied in the form of public surveys that prove the connection of the hue or the combination of colours with the applicant's brand or offers.

It is vital to note that gaining trademark protection for a colour mark in the absence of appropriate corroborating proof may be challenging, and this is something that you should keep in mind. In this particular case, the onus of proving that a particular hue, colour combination, or colour has developed uniqueness in the course of commerce or has acquired secondary meaning owing to bona fide continuous use rests squarely on the shoulders of the applicant for the trademark. For example, the word "Orange" may be a unique trademark for a beverage, but the orange hue claimed for the packaging of the container would not be distinctive in any way.

The Comptroller General of Patents, Designs, and Trademarks, as well as Société des Produits Nestlé S.A., v. Cadbury UK Limited, Concerning Color Marks.

In this particular instance, the British multinational confectionery company Cadbury demonstrated that the distinctive and one-of-a-kind shade of purple, referred to as Pantone 2865C, that it employs for the packaging of its milk chocolate wrappers has developed a unique personality over the course of time. A public poll was presented as evidence of this allegation, and on October 1, 2012, after a protracted legal struggle with the Swiss multinational food and drink industry corporation Nestle, the equivalent was granted.

Relevant Case Laws

Colgate Palmolive Company vs. Anchor Health & Beauty Care Pvt. Ltd., 2003 (27) PTC 478 Delaware District Court

In this particular instance, Colgate attempted to have an ad-interim injunction issued prohibiting the use of a trade dress and a colour combination consisting of one-third red and two-thirds white, in a certain sequence, on the container of the product known as Tooth Powder. It was claimed that the defendant, Anchor Health & Beauty Care, had adopted a trade dress that was similar to that of Colgate's, notably the colour combination of red and white, and that it was selling Colgate's product as its own.

Deere & Co. & Anr vs. Mr. Malkit Singh & Ors. (CS (COMM) No. 738/2018)

In this case, in 2018, the Delhi High Court granted protection to the Plaintiff's green and yellow color combination, which is creatively designed and uniquely used on its tractors manufactured for agricultural use. The court, considering plaintiff's products’ reputation, distinctiveness and instant source of identification argued that such color combination was in use for 100 years and the public at large had come to associate the yellow wheels and green body with Deere tractors; so protection is granted.

Conclusion

The courts have made it abundantly obvious that the uniqueness requirement for colour markings, which belong to the category of non-conventional trademarks, is very stringent by approving the registration of colour marks as trademarks. Therefore, it is evident today that the registration of a combination of colours needs some "plus component" to be in place or supplementary meaning to the colour when it is tied to the object in question. This was previously not the case. It is important to note that there is no comprehensive methodology to determine whether or not a certain combination of colours has achieved uniqueness. Rather, it is entirely dependent on how buyers perceive such a combination and how the courts can identify it.

FAQs

Q1. What is Color claim in trademark application?

Ans. Color only matters in graphic design marks like logos. If you want to register plain text, use standard character format (i.e., typed letters and certain symbols). Word mark applications do not consider colour. Design mark applicants must determine whether to file for a colour trademark. If yes, provide a colour claim that describes the mark's colours. Upload a coloured drawing.

Q2. How does a colour trademark restrict use?

Ans. You cannot modify colours while selling products with a color-registered mark. To retain registration, you must use the same design mark with the same colours. Color changes may need a new trademark application.

Q3. Is a black-and-white trademark registration broader?

Ans. Yes, registering a design mark in black-and-white without a colour claim ("grayscale") often gives additional rights and use freedom. The trademark owner may use any colours or none to support the registration without a colour claim.

Colorless trademark registrations provide infringers fewer defences. For instance, a confusingly identical logo cannot claim to use different colours than the registration.