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Libertel Groep BV v Benelux-Merkenbureau [2003] Case C-104/01

By Oxbridge Law TeamUpdated 04/01/2024 07:13

Judgement for the case Libertel Groep BV v Benelux-Merkenbureau

Table Of Contents

  • 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:

    1. Can a colour constitute a trademark?

    2. 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’:

    1. Colour sample does not suffice

      • I.e. as colour fades over time, and is thus not durable

    2. Verbal description of colour may suffice

      • But only if sufficiently clear and precise (this will not normally be case)

    3. Designation from an international colour code may suffice

      • I.e. as this is sufficiently clear and durable

    4. Use of colour sample, verbal description and designation from an international colour code in combination may suffice.

Distinctiveness

  • 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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