09.11.2004

Trademark News

On the Art of Protecting a Color as a Trademark

In Germany, the wrangle over colors as trademarks has finally attracted more notice. Meanwhile there have been legal rulings on the colors of lilac, yellow and magenta, as we have already reported. Twenty so-called color-trademarks have up to now been registered with the German Patent and Trademark Office. But further registrations are pending according to a representative from the Trademark Office, Diane Nickl, in response to an enquiry from Markenbusiness. Is there a trend here ? A look at the statistics discloses that a predominant number of registrations stem from the last two years. The tendency is growing.

In June 2004, the European Court of Justice (ECJ) decided the question of whether colors can be a way of differentiating producers as well as whether they can be portrayed graphically. The answer was couched in typical legal language: Yes, but it depends on the individual case.

Colors are available for everyone, the layman might think. Yet a color-trademark leads to a color monopoly. And the greater the number of goods and services are for which the trademark is be applied to, the greater is the danger of monopoly. The ECJ considers the special situation of color-trademarks requires maintaining a "General interest“ that the availability of colors for all market participants „is not unjustifiably reduced".

Concerning registration, something else needs to be pointed out:. A definite color pattern accompanying a trademark registration can be dangerous. Because colors fade on paper, an unambiguous identification might not be possible later on. Additionally, the color must be portrayable graphically. Here the ECJ operates according to internationally recognized color systems., for example RAL and Pantone.

The economic value of a color-trademark can not actually be underestimated because there is hardly any experience of the valuation of color-trademarks. For example, after the decision over the "Telecom color" of magenta, estimates of its worth varied widely in different journals, up to 20 billion Euros. For the color lilac, which was established by Milka back in 1901, and its cow, the worth to the company, according to its own information, is about 50 million euros. With success: in a 1995 competition in Bavaria, 40,000 children had to paint in a cow and one-third of all competitors chose to use Milka's color.

A conspicuous fact is that color-trademarks are commonly especially flashy. Signal effect is one way of describing it.. Recognition or pure eye-catcher amongst all the variety ? Or skilful advertising from a tactical viewpoint - who earlier would have been conversant with the color of magenta. But traditional colors also have their potential - the color of envy is in strong demand : GoYellow, Gelbe Seiten (German for Yellow Pages), Yellow Pages itself and the Post Office.

Red, Black, Brown. The dictionary entry for color symbolism states : In the symbolic interpretation of an individual color, the political changes of modern times lead ultimately to an independent symbolic value. Those color-trademarks which catch on, can follow the same development.

rmb

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