INTRODUCTION
The historical narrative of color as a trademark unfolds as a captivating voyage intertwined with the evolution of branding methodologies and legal frameworks. Traditionally, trademarks encompassed fundamental elements such as plain words, logos, and designs, serving as unequivocal identifiers of the origin of goods and services. However, the digital and social media revolution ushered in a paradigmatic shift in branding strategies, propelling the ascent of non-traditional trademarks as a pivotal facet of contemporary branding in the 21st century. Although companies had been employing the sensory aspects unofficially for decades, they underwent significant changes in their development when they were officially recognized as trademarks and were subsequently granted legal protection and registration.
The significance of trademarking colors lies in their profound impact on consumer perception and brand identity. Color psychology plays a crucial role in product design, as specific hues can evoke distinct psychological responses and influence purchasing decisions. For example, green is often associated with health or organic products, while blue may convey a sense of freshness or coldness. Additionally, color combinations are carefully considered for their aesthetic appeal and visual impact, with vibrant colors capturing attention and enhancing readability. Companies strategically use unique colors to differentiate their products from competitors, leveraging recognizable packaging styles to reinforce brand identity and facilitate consumer recall. However, similarity in colors, label designs, or packaging shapes can lead to confusion among consumers, potentially resulting in unintended purchases. Therefore, ensuring distinctiveness in packaging design is essential to mitigate confusion and maintain brand integrity in the marketplace.
COMPARATIVE ANALYSIS OF COLOR AS A TRADEMARK IN DIFFERENT JURISDICTIONS
EUROPEAN UNION
Article 3(3)(f) EUTMIR provides the regulation for a color trademark as;
(i) If the trademark is solely a single color with no outlines, it should be depicted by providing a sample of the color and specifying it using a universally acknowledged color code.
(ii) If the trademark comprises only a combination of colors without outlines, it should be depicted by displaying how the colors are systematically arranged in a consistent and predetermined manner, along with specifying the colors using a universally recognized color code. Optionally, a description explaining how the colors are arranged can also be included.
Where colours or colour combinations as such are applied for, the appropriate examination standard is whether they are distinctive either if applied to the goods or their packaging, or if used in the context of delivery of services. It is a sufficient ground for a mark to be refused if the mark is not distinctive in either of these situations. For colour combinations, examination of distinctiveness should be based on the assumption that the colour combination appears on the goods or their packaging, in a way that accords with the representation, or in advertisements or promotional material for the services.
UNITED STATES
The protection and acknowledgement of colors as trademarks in the United States have changed over time. For a while, a number of reasons made it difficult to accept colors by themselves or in combinations as legitimate trademarks. But important court rulings like Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) and In re Owens-Corning Fiberglas Corp., 774 F.2d 1116 (Fed. Cir. 1985) have helped to change the game and take a more sophisticated approach to color trademarks.
Historically, there have been longstanding reservations regarding the recognition of colors as trademarks, rooted in several traditional theories. One such concern is color depletion, where granting exclusive rights to a particular color for one manufacturer could potentially limit choices for others in the market. Another challenge is shade confusion, which arises from the difficulty in distinguishing between similar shades of color, posing a risk of consumer confusion. Additionally, the functionality of color presents a significant consideration; if a color is essential to a product’s function, cost, or quality, it is typically not eligible for monopolization as a trademark. These traditional theories underscore the complexities and considerations surrounding the recognition of colors as trademarks in legal frameworks.
The US Patent and Trademark Office uses a three-step procedure to register color markings after Qualitex. This involves determining whether the color has a functional use, analyzing how it affects competition, and determining whether the color is distinctive either naturally or by acquired distinctiveness. Both direct evidence such as consumer testimonials and surveys and indirect evidence such as the duration and cost of advertising are taken into account when demonstrating secondary meaning. By ensuring that only hues that fulfill particular requirements are registered as trademarks, these actions encourage fair competition and avoid confusion in the marketplace.
INDIA
In both Section 2(m) and 2(zb) of the Trademark Act define “combination of colors” as a mark and trademark respectively. However, there are some limitations with respect to color being a trademark. Section 10(1) of the Trademarks Act allows a trade mark to be limited wholly or in part to any combination of colors. Any such limitation shall be considered by the Registrar or the High Court when deciding on the distinctive character of the trade mark. Section 10(2) states that a trade mark registered without limitation of color is deemed to be registered for all colors.
In Colgate Palmolive Company And Anr. vs Anchor Health And Beauty Care Pvt. Ltd, 2003(27)PTC478(DEL), Colgate’s assertion that the color red constituted a component of their brand’s trade dress was refuted by Anchor in the dispute over the use of the color red on toothpaste packaging. In this instance, the Bombay High Court recognized that trade dress could include color. Colgate was unable to establish a trademark based only on the use of the color red on toothpaste packaging, highlighting the requirement that a color has a distinct association with a brand.
The use of color as a distinguishing element under trademark law is subject to a number of requirements. First and foremost, the color selection must be able to stand out from the crowd and convey uniqueness and personality. Second, the distinguishing characteristic of the mark must be indicated explicitly at the time of application when using a mix of colors. Furthermore, the uniqueness of the hue must only be connected to the products or services covered by the trademark. Last but not least, in order to facilitate application, the color mark should be able to be represented graphically in black and white and must be accompanied by four reproductions in color along with the application. These rules make sure that trademarks with color properly convey and safeguard the distinctive identity of related goods and services.
CONCLUSION
The landscape of color trademarking across jurisdictions such as the United States, European Union, and India reflects a delicate balance between protecting intellectual property rights and preventing monopolistic practices. While there are limitations in place to mitigate the potential for color monopolies, the prevailing trend is to allow color trademarks when they demonstrate distinctiveness and have acquired secondary meaning in the relevant market. The recognition of color trademarks provides an additional means of brand uniqueness and customer awareness for companies who are striving to stand out in an increasingly cutthroat global economy. Companies who want to register color trademarks must, however, be aware of the strict standards and make the necessary investments to establish their brand and link with the selected hue.
*Written by Helan Benny, legal intern @intepat
