Colour influences on human is difficult to overestimate. Thus, biologically we are set up to react in a certain way to different colour stimuli, while due to culture and tradition colours have different social meanings, which helps us to unite different communities, to identify our belonging to them. Similarly, it is difficult to imagine marketing without using different colours. Therefore, it is not surprising that companies try to protect their brand colours, also as a trademark, and oppose using such colours by their competitors.

There are currently three ways for colour to be part of a trademark: as part of a traditional mark (which includes other defining features such as words and shapes), as a single consistent feature of the product’s shape, and finally as the colour per se (also known as abstract colour). The last one will be the subject of our study.

 Protecting colour as a trademark is a relatively recent phenomenon. Until the 1980s, protection of abstract colours was mainly impossible under most national trademark laws. Such a defence was allowed only under the doctrine of unfair competition.

The purpose of the article is to compare the protection of brand colours as trademarks in the United States of America and the European Union (on the example of Germany and United Kingdom law).

It has been clarified that over the past few decades, brand colours have gone from being completely unrecognized as a trademark to enshrining such a possibility under legislation.Case law played a significant role for it, both in common and continental law countries. The US and EU approach to legal protection of brand colours as trademarks has a number of common features. First, a colour per se or a colours combination can in principle be registered as a trademark. Secondly, the application for registration must submit a graphic representation of the colour per se or a colours combination, which would allow to determine the limits of legal protection that will be provided in case of registration of such a trademark. Third, it must be established that the colour per or a colours combination has capable of distinguishing, usually acquired through use.

Bibliography

Edited books

1. Sudova praktyka Sudu Yevropeiskoho Soiuzu u sferi intelektualnoi vlasnosti (2016) (in Ukrainian). 2. Bainbridge D, Intellectual Property (Eighth edition, Pearson Education Limited 2010) (in English).

Journal articles

3. Caldarola M, ‘Questions Relating to Abstract Colour Marks: Recent Developments in Germany’ [2003] 25 (6) E.I.P.R. 248 (in English).

4. Carapeto R, ‘A Reflection About the Introduction of Non-Traditional Trademarks’ (2016) 34 Waseda Bulletin of Comparative Law 41 (in English).

5. Schulze Ch, ‘Registering Colour Trade Marks in the European Union’ [2003] 25 (2) E.I.P.R. 59–60 (in English).

6. Stobbs J, Geoff W, ‘United Kingdom Trade Mark and Design Decisions 2013’ [2014] 45 (2) IIC – International Review of Intellectual Property and Competition Law 222 (in English).

7. Stretch J, ‘The colour purple’ (2013) 163 New Law Journal 17 (in English).

Websires

8. Shambarta M, ‘Can non-traditional signs, such as colours, scents and sounds be protected under Trademark Law? If not, what are the alternatives to do so? A comparative analysis between Europe and United States of America’ <http://mslawyers.eu/images/ publication_documents/Can_non-traditional_signs,_such_as_colours,_scents_ and_sounds_be_protected_under_Trade_Mark_Law.pdf> (accessed: 23.12.2022) (in English).

9. Steinkühler M-A, ‘The modernisation of German trademark procedures’ (Copyright Mars – IP, Feb 21, 2022) <https://www.mars-ip.eu/post/the-modernisation-of-germantrademarkprocedures?lang=en> (accessed: 23.12.2022) (in English).