Dutch telco Libertel had sought to register a shade of orange as a trade mark for its goods and services. According to court documents, the application form contained an orange rectangle and, in the space for describing the trade mark, the word 'orange' without reference to any colour code.
The Benelux Trade Mark Office refused the application because the colour did not have a distinctive character. A series of appeals followed, culminating in a referral to the Court of Justice. The basic point at issue was whether there were any circumstances in which a colour, as simply a colour without any particular shape or form, could constitute a trade mark, and if so, when.
The court found that:
“A colour in itself, not spatially delimited, may, in respect of certain goods and services, have a distinctive character, provided that it may be represented graphically in a way that is clear, precise, self-contained, equally accessible, intelligible, durable and objective. The latter condition cannot be satisfied merely by reproducing on paper the colour in question, but may be satisfied by designating that colour using an internationally recognised identification code.”
The decision will be of interest to KWS Saat AG, a German seed company that is awaiting a hearing before the Court of Justice over the refusal of its application for a Community Trade Mark for a different shade of orange.
The judgment can be found here.