RED BULL V EUIPO – COLOUR COMBINATIONS
The EU General Court recently issued its decision on joined cases T-101/15 and T-102/15 involving trade mark registrations owned by Red Bull, both consisting of a combination of the colours blue and silver.
The registrations, granted in 2002 and 2010 respectively on the basis of acquired distinctiveness, had been challenged by the company Optimum Mark on the basis that their graphic representations failed to meet the requirements of “precision” and “uniformity”. Both the EUIPO and the Board of Appeal agreed and accordingly held that the registrations should have been cancelled.
The General Court has now confirmed the decision of the Board of Appeal on the grounds that “the mere juxtaposition of two colours, designated in the abstract and without contours” is not sufficiently precise, because such representation would allow “several different combinations of the two colours”. Furthermore, the descriptions of the trade marks included in the registrations were found not to provide sufficient “precision with regard to the systematic arrangement associating the colours in a predetermined and uniform way”.
A key aspect of the General Court’s decision is that “it is neither impossible nor disproportionate to require that an application for registration relating to a trade mark consisting of a combination of colours per se be represented graphically or accompanied by a description containing the systematic spatial arrangement of the colours in such a way as to enable the subject matter of the protection afforded by that mark to be grasped clearly and precisely”.
Some commentators have argued that introducing an additional requirement constitutes discrimination against the owners of colour combination marks and have highlighted that, as a consequence of the decision, it may become easier to secure a broad monopoly right for a single colour, than it is for colour combinations.
The practical consequences of this decision are open to interpretation and no guidance has been provided by the Court as to which characteristics the representation must possess in order to meet the additional requirement of “precision” regarding the systematic arrangement of the colours. If you own a colour combination trade mark and would like further advice regarding its protection, please contact our trade mark team.