Color Marks

05.28.2019

Color Marks
Theoretically, a mark consisting of a single color, or a combination of colors, is registrable as a trademark provided that it has satisfied the required capacity to distinguish one source of origin from the others.

However, in practice, a single color, or a combination of colors normally lacks the capacity to distinguish one undertaking from another because consumers are not accustomed to assume the origin of goods/services on their color or the color of their packaging in the absence of any graphical or textual features.

In this way, a single color packaging of goods is unlikely to be accepted as a registered trademark. Besides, a combination of colors that is unusual in the relevant industry could still be accepted for registration provided evidence of actual use would normally be required to establish factual distinctiveness. In that case, the burden of proof would also be substantial as color combinations on good packaging are not usually considered as indications of origin.

Color Series Marks
The color series trademark registration is intended to enhance the protection offered to variations of trademarks, where the variations differ only in the non-distinctive features.

Brand owners typically register their trademarks as a series, including 1) a black & white version, and 2) one or more color versions of the mark, and we all believe that this provide a broader protection under one registration. Whereas the protection of the trademarks in all colors is provided by the black & white version, and other versions provide protection to specific colors.

However, since series trademark registration should only cover trademark that do not differ substantially from each other, the color variations of the trademark should not be allowed to substantially alter the distinctiveness of the other versions.

Examples of color mark series: