A color mark is a mark that consists of one or more colors, without a figurative limit (contour).
An abstract color as such can fulfill the function of a brand, namely to distinguish the goods or services of one company from those of other companies. This means that a color can basically be entered as a trademark in the trademark register.
As with all forms of trademark , the color trademark must be distinctive for the goods and services claimed. However, due to the large number of colors used in advertising, this is usually not the case. Frequently, therefore, only a traffic enforcement enables a color trademark to be entered in the trademark register .
The problem here - as with the olfactory mark - is the requirement of graphic representability. To this end, the ECJ repeated on December 12, 2002 in its Sieckmann decision (ECJ, case C-273/00), later referring to the Libertel and Heidelberger Construction Chemicals decision, that a brand can only be represented graphically if it is clear, unambiguous, self-contained, easily accessible, understandable, permanent and objective, so that in the case of abstract color brands the color must be specified according to an international color classification system such as Pantone , RAL , HKS , etc.
This has led to criticism for a number of reasons. On the one hand, the color classification systems are partly commercially available and corresponding color cards are only commercially available. On the other hand, the companies change the color tones over time, so that, for example, Pantone 382 (a yellowish green) can be a different color at a later point in time than at the time of the trademark application.
|Pantone 368 ( green tone )||Dresdner Bank||various financial services|
|RAL -1021 ( yellow )||ADAC||various services in the automotive sector (repair, towing)|
|RAL-4010 ( magenta )||Deutsche Telekom||Goods and services in the field of telecommunications (registration number 39552630.2)|
|Pantone 280 ( blue tone )Nivea - blue||Beiersdorf AG||worldwide protected color|
|Milka - purple a)||Mondelēz International||Chocolate products|
|a) In 1995, according to Kraft, this color was the first color trademark to be protected across Europe in the broadest sense. In a ruling from October 2004, the Federal Court of Justice prohibited a competitor from using the primary color purple on packaging for chocolate wafers. Purple postcards may, however, continue to be sold.|
Examples of color combinations
- Color mark at ipwiki.de
- Trademarks - Approximation of laws - Directive 89/104 / EEC - Article 2 - Forms of trademarks - Signs that can be represented graphically - Smell or smell signs, Judgment of the Court of Justice, December 12, 2002, Case C-273/00, CURIA at 9. February 2017
- Trademarks - Approximation of laws - Directive 89/104 / EEC - Trademarks - Distinctive character - Color as such - Color orange , judgment of the Court of Justice, 6 May 2003, case C-104/01, CURIA accessed on 9 February 2017
- Trademarks - Approximation of laws - Directive 89/104 / EEC - Trademarks - Color combinations - Blue and yellow colors for certain goods for building purposes , Judgment of the Court of Justice (Second Chamber), June 24, 2003, Case C-49/02, CURIA reference 9. February 2017
- Judgment of the BGH of February 3, 2005, I ZR 159/02