The option for registration of a color trademark is available in most countries around the world. The problem, however, is that this is a serious challenge. In many cases, Patent Offices refuse such registration based on absolute grounds. The only option to overcome the refusal is if the applicant proves acquired distinctive character for the relevant goods or services. This means that consumers would perceive the color as a sign of trade origin.
In light of that, the German manufacturer of cleaning machines Kärcher won a lawsuit in Benelux regarding its following registered mark for international color code RAL 1018 (zinc yellow):
The company has been using this color for all of its products for many years.
The competing company Varo started to offer identical products in yellow:
Kärcher initiated a lawsuit claiming trademark infringement.
The Court agreed with the German manufacturer finding a likelihood of confusion between both colors. The Court confirmed that Kärcher’s color had acquired secondary distinctiveness due to long market use. The slight variation of the color used by Varo was not enough to overcome the possibility of confusion taking into account that the goods were identical.
This dispute shows us how valuable a color trademark can be. In order for this to happen, however, the owner should use the color carefully and consistently in the time collecting the necessary evidence for distinctive character and reputation of the color among the consumers.
INTELLECTUAL PROPERTY PLANET 