Claimant was a mobile phone company. Sought to register trade mark for colour orange in relation to certain telecommunication goods and services.
Two issues in this case:
Can a colour constitute a trademark?
Is the application distinctive?
Held:
In relation to a product or service, a colour per se is capable of constituting a sign.
With regards what may constitute ‘sign’:
Colour sample does not suffice
I.e. as colour fades over time, and is thus not durable
Verbal description of colour may suffice
But only if sufficiently clear and precise (this will not normally be case)
Designation from an international colour code may suffice
I.e. as this is sufficiently clear and durable
Use of colour sample, verbal description and designation from an international colour code in combination may suffice.
Colour marks usually not distinctive
I.e. As colour is simply a property of a good, and thus consumers are not used to making assumptions as to origin on basis of a colour
Thus is practically impossible for a colour to be distinctive without prior use.
Additionally, is public interest in keeping use of colours free for other traders.
Thus less likely that colour can be registered for large group of goods than for a specific good.
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