The Japanese company Hitachi Construction Machinery applied for the following color trademark in Japan for classes 7 and 12:
The Japan Patent Office refused this application based on absolute grounds – lack of inherent distinctiveness. The sign consists only of a single color – orange without contours.
Hitachi limited the goods only to ‘hydraulic excavators’ and appealed the decision.
According to the company, most of the consumers would connect this particular color with the Hitachi’s excavators because it has been used for them since 1974. What’s more the company has 20% market share in the country regarding these machines.
The Japan High IP Court dismissed the appeal. The orange color is widely used especially in the construction and agriculture industries. In general it is used as a safety sign-color aiming to prevent incidents. It is adopted for different helmets, rain suits, guard fens, work clothes etc. Other companies use similar color too for their goods.
The Court wasn’t convinced that consumers perceive orange as a Hitachi only color because the company uses white as a color for its products too.
This case is quite interesting and similar to many such cases in Europe where regurgitation of a single color is a real challenge. You can read stories for the cases of Cadbury, Deutsche Telekom, Monzo, which shows how difficult this goal is.
Source: Masaki MIKAMI
INTELLECTUAL PROPERTY PLANET 