Introduction

Intellectual Property Rights (IPR) form the foundation of the laws that offer protection to creativity and innovation. Trademarks play a key role in intellectual property by helping build and protect brand identity. Traditionally seen as logos, names, or slogans, trademarks now cover much more. One striking evolution is the rise of non-traditional marks, especially the debate around when colours become trademarks when a specific colour or combination legally signals the origin of goods or services.

It is true that colour might be too vague to be legally protected, but when strategically used in branding, colours can be so distinctive that they become synonymous with a company or product. Understanding when colours become trademarks is essential to navigating the evolving landscape of brand identity and legal protection. This blog analyzes colour marks and their legal recognition, international practices, registration challenges, landmark cases, and their significant impact on the global marketplace.

What is a Colour Mark?

A colour mark is a special form of non-traditional trademark. It is defined as a single color or combination of colors that identify the source of goods or services and distinguish them from those offered by other merchants. Unlike traditional trademarks that use text or an image, colour marks do not employ any words or embellishments; they are purely visual.

To obtain and safeguard a Trademark, a specific color must fulfill two primary criteria:

• In jurisdiction, distinctiveness is defined as: The public must recognize the color without a logo/brand mark as a source identifier that identifies a firm.
• Non-functionality: Must not possess some form of functional aim (for instance, red being used to show danger).

Some of the most notable examples are:

• UPS – Delivery Vans and Uniforms are often draped in the “brown” color.
• Tiffany & Co. – They are renowned for “Tiffany Blue” which is Pantone 1837.
• Louboutin – The brand distinguishes itself by having red soles on women’s high-heeled shoes.

International Framework  

Under the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), Article 15 allows for the registration of signs including colours as trademarks, provided they are capable of distinguishing goods or services. However, enforcement and execution of these provisions vary significantly across jurisdictions, leading to inconsistent protection standards worldwide.

United States 

In the US, colour marks are recognized and registered under the Lanham Act. The landmark case Qualitex Co. v. Jacobson Products Co. (1995) set a key precedent by affirming that a single colour can be trademarked provided the applicant proves that the colour has acquired secondary meaning and identifies the source of goods or services.

This Supreme Court decision provided the basis to Usa single colour trademarking enabling Qualitex to legitimately claim ownership of trademarking the green-gold used by Qualitex on dry-cleaning press pads.

European Union

The EUIPO (European Union Intellectual Property Office ) also grants recognition to color marks but with some caveats. For a color mark to be registered, EU legislation stipulates that it must be:  

• Clearly delineated and graphically depicted preferably with an internationally accepted color coding system such as pantone) 
• Distinct from other goods/services
• Not routinely used or functional  

Libertel Greep BV V. Benelux-Merkenbureau (2003) showcased the need for universal standards in described nomenclature alongside the necessity of equable description pertaining to color identification. 

India 

Section 2(1)(zb) of the Trade Marks Act, 1999 allows India to be part of the IPBC (International Protocol on Brand and Color). It is notable that the Indian courts have not yet gone through many case laws regarding color marks. However, the latter office aligns with international standards prioritizing distinctiveness and non-functionality.  

Registration of Color Marks  

To legally register a color mark, claimants must provide: 

• Evidence of spent advertisement, consumer surveys, commanding market share alongside the duration and exclusivity of brand utilization in a given market serve as proof.
• Clear Description: The color must be uniquely identified by standard color designations such as Pantone, CMYK, or RGB values.

Lack of Use: The applicant needs to show that the color does not serve any primary use that is fundamental to the product, as well as does not impact the cost, quality or value of the product.

Graphical part: Along with the application, there should be provided a sample of the color and a written description as explanation of the sample.

Combination vs. Single Colour

It is easier to register a combination of colors than a single one. A combination is more likely to be distinctive rather than functional. For instance, a particular patterned design on a container will be easier to identify with a company than a plain single color.

Difficulties in Registering Colour Marks

Regardless of their economic importance, there are a number of reasons why the registration and enforcement of colour marks is problematic:

1. Subjectivity and Distinctiveness: It is quite easy to assert that a colour is distinct enough to identify the source of goods. The problem appears because there are a limited number of colours and most of them are in use across various industries. An applicant is expected to prove acquired distinctiveness.
2. Functionality Doctrine: Courts and registries are reluctant to bestow the monopoly over the usage of functional colours. For example, blue indicating cold water taps or red indicating stop signs would unfortunately fall in the category of functional and would not be eligible for trademark protection.  
3. Generic Use: When an industry widely accepts a color, trademark offices often categorize it as generic and lacking distinctive character. For instance, many associate green with eco-friendly products, which makes it harder for businesses to secure exclusive rights to that color.
4. Enforcement: Even after registering a trademark, enforcing a colour mark often proves legally challenging and strategically costly. Rights holders must prove infringement by showing a likelihood of confusion something that becomes especially difficult when colour similarities are subtle or subjective.

Landmark Cases Involving Colour Marks  

1. Qualitex Co. v. Jacobson Products Co. (1995), USA: This case is the backbone of color trademark law in the United States. The court ruled that colors can serve as trademarks if they have acquired secondary meaning and are not functional which came as a big blow for most businesses.  
2. Louboutin v. Yves Saint Laurent (2012), USA: French designer Christian Louboutin sued Yves Saint Laurent for featuring his red sole trademark on high-heeled shoes. The court maintained Louboutin’s trademark on red soles but restricted it to cases where the upper part is not all red but contrasts with the shoe’s body.
3. Nestlé v. Cadbury (2013), UK: Cadbury tried getting a trademark for their signature purple shade (Pantone 2685C) which is used on their chocolate wrappers. Nestlé contested the trademark application. The UK Court of Appeal ruled that Cadbury’s colour description lacked the required clarity and precision, resulting in a denial.

Branding Power: When Colours Become Trademarks

Colour plays a powerful role in consumer perception. Research in marketing and psychology has shown that colour influences:

• Brand recall
• Emotional response
• Purchasing decisions

Because of its visual impact, companies indulge in colour-based branding exclusively.

Channelling a particular colour with a brand, for instance, Covenant’s red light or John Deere’s green is a sought after intangible assest. Such legal protection permits the entities not to be visually identified by others.

Best Practices for When Colours Become Trademarks

For businesses that intend to apply for a colour mark registration, consider these suggestions:

• Execute a trademark search to verify that no such colour is linked to a product or service for which it is associated.
• Compile proof of distinctiveness including consumer surveys, sales analysis, and media attention.
• Concentrically utilize the colour with the overhead advertising and product package to enhance public cognomen association.

If your company trades internationally, register in various jurisdictions because trademark rights are territorial.  

Guard and vigil vigilantly to prevent the conjunction of dilution or infringement obstructing the enforcement of your rights.  

Conclusion  

The protection of marks in dispute represents a convergence of law with design and marketing. Strategically owning a remarkable colour in commerce can legally transform brand identity highlighting the critical moment when colours become trademarks. As the market becomes saturated and brand competition intensifies, colour marks emerge as a key differentiator. However, the journey from usage to registration demands careful planning, strong evidence, and legal diligence. With evolving jurisprudence and growing recognition of non-traditional marks, colour marks are poised to become an even more integral part of the intellectual property landscape.

References

1. Dawson, N. M. (2024). Colour in trade mark law. In Research Handbook on the History of Trademark Law (pp. 248-282). Edward Elgar Publishing.
2. Vig, S. (2022). Intellectual property rights and the metaverse: An Indian perspective. The Journal of World Intellectual Property, 25(3), 753-766.
3. Marshall, J. (2022). Rights beyond the registration: from black and white to grey. Journal Of Intellectual Property Law and Practice, 17(2), 193-198.
4. Bolawa, B. S. O. T. (2024). Economic and Financial Analysis of Selected Enterprises in Nigeria: Nestle and Cadbury.
5. Clegg, S. R., & Kornberger, M. (2021). An organizational perspective on space and place branding. In International Place Branding Yearbook 2010: Place Branding in the New Age of Innovation (pp. 3-11). London: Pal