INTRODUCTION-
The goal of all marketing strategies is to grab the consumer’s attention and leave a lasting impression. Consumers are more likely to remember a distinctive brand with a memorable tagline and colour scheme.
Many marketing professionals hold the opinion that colour is the most crucial aspect of branding, and for good reason—many firms can be identified only by their colour. The two best examples that come to mind are Cadbury’s purple packaging and Christian Louboutin’s shoes with their red soles.
Can a colour be protected as a trademark to prevent other companies from using the same colour scheme if the company is recognisable by its colour? YES
An internationally recognised brand, John Deere is known for its agricultural machinery, particularly its tractors, and harvesters, and combine with a distinctive green and yellow colour scheme.
An interim injunction was recently obtained by the Delhi High Court against the defendant, who was using the colour scheme of green and yellow for tractors, in favour of the plaintiff, John Deere. The plaintiffs argued that they have employed the aforementioned colour scheme since 1918 and have thereby established distinctiveness for it. They claimed to have registrations for the green and yellow colour schemes in India as well.
Definition of ‘mark’
Though the issue of trademark protection for a colour or combination of colours has few judicial precedents, the legal position is clear in terms of what the law allows in this context. It can be assumed that colours can be protected in respect to products and services under the Trademark Act as the definition of a mark under that law includes a “combination of colours.”
Colour as a trademark
According to Section 10 of the Act, a trademark may be restricted to a specific colour or colour combination. Such a colour restriction, however, will only be permitted after the distinctiveness of the mark has been established. However, if no specific colour has been claimed, it will be regarded as registered for all colours.
Examples-
Some popular examples of trademark colours include –
Cadbury Purple, Barbie Pink, Home Depot Orange, T-Mobile Magenta, Wiffle-Ball Yellow, UPS Brown, Green-gold, Qualitex, Tiffany Blue, Target Red, Coca-Cola Red, Christian Louboutin Red Soles, Pepto-Bismol Pink
The distinctiveness of the colour mark
It must be specifically stated at the time of filing if the mark is being requested for a colour combination and this is what makes the mark distinctive. However, if a specific colour is claimed, the applicant will need to provide proof that the claimed colour combination or colour is uniquely linked with the applicant or used to identify their goods.
In light of this criterion, it is essential to submit such marks claiming usage as of a specific date in order to be able to prove that the colour or combination of colours is in fact connected to the Applicant. However, it would be challenging to assert exclusivity over a colour if it is widely used in trade. An intriguing example is given by the Trademark Office: while the colour green as a trademark for beer may be unique, it would not be so when used to package beer bottles.
File your trademark application ASAP-
It is not necessary for applicants to wait until they can demonstrate secondary meaning or even until they start utilising a specific colour in commerce before submitting a trademark application for their colour mark.
Even if a colour mark is not used right away, registering it can still be advantageous. The applicant will have the advantage of an earlier filing date as opposed to waiting until the mark truly acquires secondary meaning. If competitors later start utilising the same or similar colours in conjunction with their own products or services, this earlier filing date can be quite advantageous.
Consult a trademark lawyer as soon as possible. Brand owners should first speak with a trademark attorney to make sure the colour mark can actually be registered before investing a lot of money into using it in conjunction with their products or services. In order to determine whether a colour mark is available for use and whether any comparable colour marks are currently being used in the relevant market that could offer barriers to registration or even lawsuits from rivals, trademark attorneys have access to strong, extensive research tools.
Additionally, trademark attorneys can offer advice on whether a color’s intended use can be protected, whether it has to be altered to improve the likelihood of registration, and how to create shortcuts to secondary meaning. As with any trademark, hiring a trademark attorney early on is significantly more cost-effective than waiting until issues emerge and adjustments to one’s brand are required.
Opinion
The Delhi High Court recognised the plaintiff’s entitlement to the green and yellow colour scheme only because they could demonstrate that it had grown distinctive and, more crucially, that it was exclusively connected to the plaintiffs.
Therefore, it is better to apply for registration claiming a certain colour if a product or the packaging is of that colour (for instance, canary yellow for Post-it notes or purple for Cadbury). However, it could be preferable to register for a trademark without claiming exclusivity to a specific colour if the product or packaging is anticipated to change from time to time.
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Disclaimer: The information presented here is only meant to be informative. Although this article was carefully crafted, it should only be regarded as general advice because it has been expressed in general terms. You should not act on the information provided in this article or refrain from acting upon it without first seeking professional advice since it cannot be relied upon to address your unique situation
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