IPHUB Asia: Trademark - can a company own a colour?

In a social circumstance, colours define a person’s personality. If you wear black, you can be considered as classic, dark and mysterious, insecure, introverted, powerful, or even displaying a lack of creativity. Conversely, if you wear something bright or of a cheerful tone such as yellow, it exudes positivity, brightness, and energy, while on the other side of the spectrum, it represents frustration or anger. But what happens when a colour can actually identify you as a source of origin? You could make that colour your trademark. 

 

Is it possible to register a color as a trademark?

Even though the requirements for registering a colour as a trademark are rather strict, it is not entirely impossible. If a colour/colour combination is exceptionally unique or unusual in that it is not composed of the basic primary colours and that it caters to a specific relevant market, then the chances of registering the same are good. 

Perhaps, you can already think of some big players in their own specific industry who have trademarked these colours:

  • Brown
  • Magenta
  • Red
  • Tiffany blue
  • Yellow

The purpose of a trademark is to identify the source of origin of the claimed goods or services to the relevant group of consumers. If you, as a consumer, have successfully identified the companies that have trademarked the aforementioned colours, then the proprietors of those marks have successfully attained their identities in this connection.

Learn more about colour trademarks and other non-traditional trademarks in Singapore.

 

On what grounds can a colour trademark application be refused registration?

1.   When the colours serve a function

Certain colours provide a particular effect through physical or chemical change which enhances the effectiveness of the product. For instance, the colour black, for solar power collectors, or silver when used as insulation as it reflects heat and light.

2. When the colours convey a generally accepted meaning

Certain colours denote a particular meaning. For instance, red as a warning sign or green for the environment. Also, the rainbow flag as a symbol for LGBTQ Pride. 

3.   When the colours are common to a trade

Colours that are particular to an industry or trade are not distinctive. Examples of colours being common to a trade include:

–  Terracotta for roof tiles or ports

–  Khaki for ropes/hemp

–  Orange for curry powders or orange juice

Since these colours are the naturally occurring colours of the product, it may be difficult for a consumer to differentiate one product from another, from a specific source of origin.

· Also, goods in a market where colours need to be used competitively. For example, the textiles, clothes, and paint industry where various colours are used.

 

On what grounds can a color trademark application be accepted for registration?

If an intended colour mark is not regarded as being distinctive, then acquiring distinctiveness from the use of such a mark will be necessary for it to be accepted for registration. Of course, such use will be subject to the scrutiny of trademark examiners who will thoroughly assess the evidence to show the actual use of the color mark as a trademark.

More information and an in-depth explanation of evidence of use can be found here.

 

Is it worth registering a color mark?

If the color is essential to your brand, it would be good to seek protection for it as soon as possible.

 

Source: IHUB Asia

 

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