C was a mobile phone company. Sought to register trade mark for colour orange in relation to certain telecommunication goods and services. Two issues in case:
i) Can a colour constitute a trademark?
ii) Is the application distinctive?
Held:
‘Sign’
· In relation to a product or service, a colour per se is capable of constituting a sign.
· With regards what may constitute ‘sign’:
i) Colour sampledoes not suffice
– i.e. as colour fades over time
– thus not durable
ii) Verbal description of colour may suffice
– But only if sufficiently clear and precise
– This will not normally be case
iii) Designation from an international colour codemay suffice
– i.e. as this is sufficiently clear and durable
iv) Use of colour sample, verbal description and designation from an international colour code in combinationmay suffice.
Distinctiveness
· Colour marks usually not distinctive
Ø i.e. as colour is simply a property of a good
Ø thus consumers 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.
Ø Thus less likely that colour can be registered for large group of goods than for a specific good.
