Trademark Law
Introduction
Trade mark means branding of products and services or providing signs distinguishing a particular good or service from similar commodities. A trade mark takes different forms covering a name, slogan or a graphic image. In other jurisdictions protection is also extended to three dimensional shapes, sound and smell.[1] Due to the sheer number of good and services in the market, trademark statutes were established to regulate the branding behaviour among competitors in the market by allowing the owner of a mark to develop and maintain this brand.[2]
Trade mark ownership in Australia is based on national laws harmonised with international agreements dating back to 1891 together with registration under the National Trade Marks Office or any equivalent registry depending upon jurisdiction requirements. Recognition and protection of mark ownership is limited to jurisdiction. This means that a mark registered with a particular jurisdiction and under a particular category can be registered by other individuals or firms in another jurisdiction or for another category. Ownership of a mark is not absolute but jurisdiction based. However, once there was an infringement of mark ownership in the same registration jurisdiction and in the same category, the registered owner has the right to take legal action against the infringement.[3]
Protection of mark ownership through registration in Australia lasts for ten years subject to renewal for another ten years subject to the payment of registration fees and satisfaction of basic conditions for the use of the mark. A registered trademark, having the nature of property, can be traded, used as security for loan, or made to embellish the firm’s balance sheet.[4]
Trade mark constitutes an intangible investment, which is easily imitated or copied by a firm’s competitors. Without trademark legislation it would be difficult to prevent free-riders using the mark without contributing to its development leading to losses for the mark owner in terms of the non-recoverability of the cost of investment appropriated by another person. Apart from the prevention of free-riding, the regulation of trademark ownership also works for the interest of society to ensure the propagation of ideas to the rest of society. This is achieved through the requirement of patent disclosures, limited duration of patent protection, and restricted copyright protection for expression but not for ideas.[5]
Trade mark registration process in Australia commences with an application with the appropriate registry in order to determine whether the mark subject to registration has already been registered and used under a particular class or unavailable. This will be determined through the registry database. If it is determined that the mark is available for registration, the registrant submits the application for registration to IP Australia. The application should contain the corporate information and details of the good or service with which the mark is associated. All applications are checked with the database and provisions on statutory exclusions. If the application is accepted, this will be published. In case of the lack of opposition to the application, ownership is recognized commencing from the date of filing of the application.[6]
Tests Applied for the Registration of Colour Trademarks
Section 17 of Trade Marks Act 1995 (Cth) defines a registrable trade mark as “a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person”. Examples of permissible marks are covered by the provision defining sign in section 6 of the Trade Marks Act, which are: 1) letter; 2) label; 3) word; 4) ticket; 5) name; 6) aspect of packaging; 7) signature; 8) shape; 9) numeral; 10) colour; 11) device; 12) sound; 13) brand; 14) scent; and 15) heading. The list is inclusive and open to other conceivable signs and even to moving image or holograms[7].
In relation to colour trademarks, registration involves the application for the registration of a colour or combination of colours associated with a product or service. Several tests are available for the registration of colour trademarks. First test for the registration of colour trade marks is that the colour or combination of colours falls under the definition of sign may be registered as a trade mark. Colour trademarks may consist of labels or ticket integrated with other signs, colours applied to commodities, colours comprising aspects of packaging. Apart from compliance with the definition of sign, the colour or combination of colours should be used as a distinguishing mark for the goods or services offered by the applicant.[8]
Second test in registering colour trade marks is with regard to goods. Registration of colour trade marks associated to good is acceptable if the application provides clear and concise depiction and pictorial representation of the mark. The application should show the manner that colour subject of registration is applied to the good or its packaging. However, in some instances, colour trade mark registration may be permitted despite lack of compliance with the abovementioned requirement where the colour is shown as the representation itself. An example is the application made by Orange Personal Communications Services Limited for the registration of the colour orange associated with the services of the company which was accepted under Australian trade mark number 820452.[9]
Third test in the registration of trade marks covers services. Similar to the registration of colour trade marks associated with products, the application should also contain a description of how the colour is integrated with the service offered by the applicant. Examples of colours integrated with services are colour designs of the façade of the business address, building and fixtures.[10]
Fourth test in the registration of colour trade marks is the distinction of the colour being associated with the service. The applicant is required to pass colour and colour scheme samples to the trade mark registry. This may be based on a popular colour matching system but this is not mandatory as long the applicant is able to produce a sample of the colour scheme or combination together with the application.
Fifth test in the registration of colour trade marks is the distinctiveness of the colour scheme or combination. In Philmac Pty Ltd v Registrar of Trade Marks[11] provided the circumstances where certain colours and colour schemes can be adapted as distinguishing marks, these are 1) colour chosen does not serve a utilitarian purpose and does not produce particular physical or chemical effects such as heat absorption or light reflection; 2) colour does not have an ornamental purpose and does not denote any recognized meaning such as danger or environmentalism; 3) colour does not have an economic purpose and it does not constitute the naturally occurring state of the colour because otherwise competitors would have to pay additional expenses to avoid infringement suits; and 4) the colour trade mark is not being registered in association with commodities in a market using colour as a competitive edge otherwise competitors would use the colour in a similar fashion.
The concurrent case of In Luk Lamellen and Kupplung Beteiligungs KG[12] provided that the criteria mentioned in the previous case is applicable to both goods and packaging. However, by analogy the criteria may also be made to apply to services as long as the components of the criteria are satisfied.
The sixth test in the registration of colour trade marks is the level of distinctiveness to be proven for the application to become acceptable to the trade marks office. According to the case of Philmac Pty Ltd v Registrar of Trade Marks[13], the Trade Marks Act 1995 does not differentiate between traditional and non-conventional trade marks. This implies that in theory, colour trademarks may be considered inherently distinctive and subject to registration even without the establishment of distinctiveness through actual use. The rationale for this is that saying that a colour can never be adapted to distinguish the applicant’s goods defeats the provision of the act allowing colour as trade mark.
However, in practice the registrar is likely to make an objection to applications for the registration of colour trademarks especially if it is for a single colour. This is likely based on the reason that the execution of the single colour may not be able to support the provision of a distinguishable mark for the applicant’s good or service relative to other traders. In this instance, the applicant may have to provide evidence that the colour trade mark has attained de facto distinctiveness through use of the mark. There are instances that more evidence apart from actual use of the mark is needed to prove colour trade mark and product association as shown in the case of Re Application by Cadbury Ltd[14]. The colour trade mark should function as a trade mark by distinguishing the applicant’s products with the commodities of its competitors. In some instances, even proof of use of a single-colour trade mark for six years may comprise sufficient proof of mark distinction through actual use.
The seventh test for the registration of colour trade marks is the extent of the need for keeping the mark exclusive to the use of the applicant. Under the Trade Marks Act 1995, a single colour is allowable as a trade mark so that a colour can be made as a distinguishing mark for a good and even by analogy to a service. This is based on the issue raised by the colour depletion theory, which provides that the registration of a single-colour trade mark has the effect of monopolising the different shades of that colour because the shades would be classified as similar to the colour registered. This has the effect of limiting the colour trade marks available for other applicants. This theory was rejected in the case of Re Owens-Corning Fiberglass Corporation[15] rejected the theory because this is inconsistent with the legislative provision that a single-colour trade mark is capable of being registered as a mark. In the Philmac case, the colour depletion argument explained that if there is competitive need to keep colours available, it would not be unreasonable to prevent the monopoly of the colour and vice versa. This means that the general rule is that a single colour trade mark is acceptable for registration. However, single-colour applications may be denied in certain instances that excludes the colour depletion theory.
The eighth test in the registration of colour trade mark covers the assessment of the distinctiveness of the mark subject of the application. In determining the distinctiveness of the colour trade mark being registered, Multix Pty Ltd[16] provides that making a colour trade mark distinguishable is difficult since the use of a mark by the producer of a product, particularly if used successfully, would spur competitors to use the same colour or colour scheme. The Multix case involved two applications for the registration of colour trade mark covering aluminium foil (class 6) and domestic aluminium utensils (class 21). Trade marks being registered were described as follows, the first application is trying to register the colour red as predominant background in the product packaging while the second application is also trying to register red as the predominant background while using white as the colour for the writing on the product packaging. In this case, the objection to the applications was upheld. The objection revolved around the fact that the colour and colour scheme being registered comprise a scheme that other traders would also likely want to use for as their mark. This makes the colour scheme undistinguishable.
In the similar case of Re application by Notetry Ltd[17], it was also determined that the colour scheme being registered is yellow and silver associated with cleaning apparatus (class 7) such as vacuum cleaners and carpet shampoos was a scheme that competitors would likely use in their marks. These cases imply that the visual manner that a mark was used in association with a product has a great impact on the distinctiveness of the mark. A common concept is likely not to be accepted while a less common execution would have a bigger chance of being accepted. Other means of achieving distinction are by having a high level of precision in defining the colour scheme, defining the extent and location of the colour scheme relative to the good or service; the usage of the colour together with a word mark so that the word mark may support the distinctiveness of the colour trade mark; the variety and combination of colours in the trademark so that less colours and less complicated colour schemes would have lesser chance for registration; and the colour itself since primary colours have lesser contributions to distinctiveness relative to complex colours and combinations.
Colour Depletion Theory
Colour depletion theory states that only a few colours easily discernible with ease exists so that in case these colours have already been used and appropriated in a particular market, other people or firms seeking entry in the market are deprived of a fair competitive field[18]. In the earlier case of Re Owens-Coming Fiberglass Corporation[19], colour depletion theory was explained as capturing a situation where due to the premise that there are a limited number of easily discernible colours, the registration of one shade of a colour as a trademark in a market would have the effect of monopolising every shade of that colour. This situation has the effect of limiting the colours that individuals and business firms could use and register as colour trade mark in a particular market or class of products due to the monopolisation of colours.
Applicability of the Colour Depletion Theory in Australia
The colour depletion theory has been rejected in Australia as a valid principle governing trade mark use and registration because the approach has been found to be inconsistent with the established legislative presumption that colour can be registered as a trade mark. In Australia, the Trade Marks Act 1995 (Cth) provides for the registration of colour as a trade mark. To make the application and registration of colour trade marks possible in application, section 17 of the stature defines a trade mark and section 6 of the same legislation provides for the trade marks that can be registered with IP Australia including colours and colour schemes. Apart from this several tests or requirements have arisen in order to provide for guidelines in the registration of colour trade marks and the resolution of issues in applications for the registration of single colours and colour schemes. These legal provisions together with the court decisions such as in the Luk Lamellen case in 2003, Philmac case in 2002 and Cadbury case also in 2002 support the registration of colour as trademark whether the application covers a single colour or a colour scheme subject only to the application of the tests to determine capability for registration and compliance with registration requirements.
This implies that the colour depletion theory is not applicable in Australia because the idea that the limited number of colour that can be registered as trade mark makes monopolisation of colour probable preventing other individuals and business firms from using and registering a colour trade mark already being used and registered by another individual or business firm is inconsistent with the legal provision allowing the registration of colour as trade mark. Due to the inconsistency, the colour depletion theory has been rejected in Australia. In order to address the issues raised by the theory particularly the registration of similar colours and colour schemes, decisions in the recent cases mentioned above have identified distinctiveness as the primary criteria for considering applications for the registration of colour trade marks. Applicants should be able to show that the manner of using a single colour or a colour scheme by the firm as a trade mark has a certain level of distinctiveness that would support the approval of the application. Distinctiveness then means that more complex or unique colour schemes have a higher probability of being approved for registration as trade mark relative to the application for single colours or generic colour schemes as trade marks.
Comparative Legal Analysis of Trade Mark Law
Comparison of the trade mark law of the United States, the European Union, Australia and United Arab Emirates is discussed by looking at three areas, which are: 1) the registrability or eligibility for registration of colours and colour schemes as trade marks; 2) the tests and requirements in the registration of colour trade marks; and 3) the applicability of the colour depletion theory.
Registrability of Colour Trade Marks
In the United States, registrability of colours and colour schemes as trade mark is provided by Title 37, Part 2, Section 52, Subpart b(1) of the Code of Federal Regulations 2003. The provision allows the registration of single colours and colour combinations or schemes associated with goods or services. In the case of single colours associated with goods or services, the applicant seeking trade mark registration should be able to show the mark in the form of colour, provide the name of the colour sought to be registered, include a clear and concise description of the placement of colour on the mark, and submit an assertion containing the claim that the colour subject for registration is a significant and defining feature of the trade mark. One example is the single colour registered as U.S. Reg. No. 2256226 covers the colour orange described as Pantone 165C based on the Pantone Matching System for designating colours and their various shades to support colour trade mark distinction.
In the case of the European Union, trade mark law comprises a supranational law that takes the place of national laws of the various member states. Trade mark law in the European Union is somewhat similar to the US system. Like in the United States, the applicant of a mark has the option of applying for national protection or registration in a single member country or applies for EU-wide protection. However, the difference in the case of the European Union is the existence of difficulties in the harmonisation of trade mark law in conjunction with international and national laws. Several international and union legislations cover trade mark registration, which are: 1) Paris Convention; 2) Madrid Agreement; 3) TRIPS Agreement; 4) EC Harmonization Directive; and 5) EC Regulation. In the European Union, the harmonisation of these various statutes is made through the policy that trade marks is regulated internationally but the determination of the marks that may be subject to registration falls under the jurisdiction of national authorities. Thus, in terms of registrability, colour and colour combinations are recognised as trade marks in the European Union but the implementation of statutory protection differs between the US and the EU in terms of the dynamics of applicable laws.
Specifically, with regard to the protection of colours as trade marks, the registration of colour combinations offers fewer problems relative to single colours. Combination colours are definitely subject to registration but it is only in the case of single colours that the issue of registrability becomes an issue. Under Article 6 of the Paris Convention, provides that marks without distinctive features cannot be subject to registration but the legislation does not provide a description or a list of the marks that can be registered. This means that under the Paris Convention, while protection is given to the registration of trade marks, it does not explicitly address the case of the registration of single colours. By looking at the supplementary TRIPS Agreement, particularly article 15, marks used to identify goods are subject to trade mark registration. Examples of marks subject to registration are colour combinations but no mention is made of single colours.
This means that it is up to the member states to determine whether a single colour will be allowed registration based on the context of the application. However, EU member states are not entirely devoid of guide in resolving single colour registrations. In the Libertel Groep v Benelux-Merkenbureau[20], the Netherlands SC sought the decision of the European Court of Justice in determining whether single colours may constitute a trade mark and what are the circumstances under which single colours may be subject to protection. According to the decision of the ECJ, single colours may be subject to registration provided there is compliance with these three conditions: 1) the colour trade mark should comprise a sign or that it is used in a particular context of association with a product or service; 2) colour trade mark should be graphically presented by providing a sample of the colour and a definite description of the colour during application; and 3) the colour mark should serve the purpose of distinguishing the goods or service relative to other similar goods or services.
On one hand, in the case of the United States, the test used in determining the registrability of single colours is the ability of the applicant to prove that the colour subject of registration is distinctive by showing that the mark is primarily comprised of the colour, providing a clear description of the use of the colour as mark, and the submission of an assertion claiming that the colour makes up the defining characteristic of the trade mark. On the other hand, in the case of the European Union, the registrability of single colours is determined by the criteria set out by the ECJ decision in the Libertel case, that the colour is a sign, its is graphically presented, and its distinguishes the good or service associated with it. In both jurisdictions, colour schemes or colour combinations are definitely registrable.
In the case of Australia, colour trade mark registrability is provided by the Trade Marks Act 1995 (Cth). Under the list of permissible marks, colour is considered part of the marks allowed to be registered as trade mark. Decisions in court cases and the rules set forth by IP Australia provide for the registration of both single and combination colours associated with either or both goods and services. The Philmac case not only supports the registrability of colour trade marks but also provides for the manner of determining whether an application should be accepted.
Looking towards the commercial centre in the Middle East, the United Arab Emirates has recognises trademark and has enacted its own trade mark law. Among the list of registrable marks are language terms, names, signatures, letters, numbers, drawings, symbols, addresses, hallmarks, stamps, pictures, vignettes, notices, packages, combination of the mentioned marks, and sound accompanying a mark[21]. There is also an enumeration of marks that cannot be registered[22]. Neither the list of registrable marks nor non-registrable marks mention colour as a trade mark. In this sense, the provision of the UAE trade mark law indicates non-recognition for colour as trade mark in itself. However, United Arab Emirates is a member of the international community and the World Trade Organization (WTO) so that the state is bound to comply with the agreements which it has signed and ratified such as the Paris Agreement and the supplemental TRIPS Agreement together with the Trademark Law Treaty. Although, the TRIPS Agreement allows combination of colours as registrable trademark, the Paris Convention and the Trademark Law Treaty allows states to specify their criteria for registrability. In this sense, it is up to the United Arab Emirates to decide whether to allow the registration of single and combination colours when application for these marks arise.
Australia trade mark law is similar to the legislation applied in the United States and the European Union in terms of the registrability of colour as trade mark and the requirements for registration. A stark difference in the trade mark law of the three jurisdictions is that the European Union faces problems in the harmonisation of international law, EU directives and national law particularly in the consideration of applications for single colour. In the case of UAE, the trade mark law provides a list of registrable and non-registrable marks but it does not explicitly disallow the registration of colours as trade marks.
Test for Registrability
In relation to the test of registrability in the United States, Qualitex Co. v Jacobson Products Co. Inc.[23]provides that colour marks cannot be considered as inherently distinctive. As a result of this decision, the succeeding case of In re Ferris Corp.[24] provides the requirements that applicants should comply with in order to secure the approval of their application. Applicants seeking registration for a colour trade mark associated with a good or service has to overcome the requirement of demonstrating secondary meaning. Concurrently, according to the Trademark Trial and Appeal Board, the burden of proving the acquisition of distinctiveness of the colour or colour scheme used and subject of registration is greater for colour marks because of the assumption that colour is inherently non-distinctive. The non-distinctiveness of colour emanates from the rationale that consumers do not practice the association of a particular colour to a certain product or manufacturer but instead recognise more the totality of the packaging trade dress of products.
In the Qualitex case, the scope of protection for the registration of colour trade marks was expanded so that applications for the registration of single colours or colour schemes are allowed provided that the applicant is able to prove the existence of secondary meaning by proving the distinctiveness of the colour or colour scheme subject of registration and the lack of functionality of the colour or colour scheme making it common or generic and not qualified for registration for use by a single business firm.
With regard to the test of registrability in the case of the European Union, the 2003 Libertel case dealing with trade mark registration of the orange as the colour trade mark associated with telecommunications equipment and services held that the context of the use of the colour determines the constitution of the colour as a sign making it registrable. In this case, the ECJ applied the Sieckmann test, which provides that colour sample does not in itself assure trade mark registration in a similar way that verbal description does not necessarily make up a graphic representation. However, the description of a colour using an internationally accepted colour identification code may be accepted as a valid graphic representation. In relation to the test of distinctiveness, the court held that this is determined based on the use of the mark as badge of origin in the industry and market together with public perception. Also, in instances where registration would impede the availability of colours for the competing firms, companies the application may be denied registration.
This ruling was refined in the case Heidelberger Bauchemie GmbH[25]. In this case the court provided that colours and colour schemes subject of trade mark registration claimed in the application as having no contours, of a shade or shades described in words with reference to a given colour sample and specified according to an internationally recognised colour code may be approved for trade mark registration. In deciding the case, the ECJ made use of a two-pronged test, which provides that 1) colours should represent a sign in the manner that these are used and 2) the application for trade mark registration should have a systematic arrangement that strongly associates the colours with goods and services in a uniform manner.
The test of registrability in the United States and the European Union are similar because both determine the qualification of an application for colour trade mark registration based on the context of usage, particularly the manner that the colour is used in a distinctive manner. The difference is on the focus of the tests. In the United States, the test focuses on the lack functionality while in the European Union, the tests focus on the utilisation of colour as a sign.
In the case of Australia, there are several tests for registrability, some of which are similar to the requirements in the United States and the European Union. The tests can be summarised into four requirements. First test is that the utilisation of the colour as a mark should make the colour constitutive of a sign. This is similar to the requirement being focused by the European Union trade mark law. Second test is the need for a clear description of the colour in order to clearly set the colour as uniquely used by the business firm. This is similar to the requirement subject of the focus of the US trade mark law. Third is the applicant’s showing of proof of the distinctiveness of colour usage. This test is also present in the US and EU trade mark law application. Fourth is the test for making the colour free from trade mark registration. In the United States, the test used is functionality while in the EU the test is the number of registrations for a single colour or colour combination in a market or product class. In the case of Australia, the test of registrability is whether allowing the registration of a colour or colour scheme as trade mark would create an unfair ground for competition within the market. The case of UAE differs because since colour as a trade mark is not explicitly allowed or disallowed. However, in case colour is allowed to be registered as a trademark, the primary test for registrability is still distinctiveness similar to the other jurisdictions as provided in the UAE trade mark law[26].
Applicability of the Colour Depletion Theory
Prior to the Qualitex case, NutraSweet Co. v Stadt Corp.[27] provides that colour and colour schemes were not protected as trade marks because the general rule then is that colour cannot be monopolised in order to distinguish products or services. This rule is supported by the colour depletion theory that there are only a limited number of colours that can be subject to easy differentiation or distinction so that allowing the registration of colours would result to the monopolisation of colours by a few individuals or business firms in a particular market defeating fair competition. With the decision in the Qualitex case, the colour depletion theory was abandoned so that the general rule became the legality of registering colours and colour schemes.
However, even if the colour depletion theory was abandoned in the United States, the theory still emerges during the registration process when the functionality analysis is applied. In the case of In re Howard S. Leight and Associates Inc.[28], reddish-orange shade for safety earplugs subject to registration was found to be functional since the bright colour helps in monitoring the compliance of employees with health and safety practices. This means that the colours of this sort have limited distinction due to their functionality indicating difficulty in registration. In Re Orange Commc’n Inc.[29] also provided that orange and yellow for use in telephone booths were found to be functional because registration limits the ability of other firms to compete in the market.
In the case of the European Union, some principles of the colour depletion theory were recognized but the European Court of Justice still upheld the registrability of colours in instances where the context of use of colours as trade mark is distinctive. In the Libertel case, the court recognized that colours possess only a semblance of inherent capacity for conveying specific information. This means that even if colours are used to advertise and sell products, the use of colours is without particular messages. However, the court also provided that in some circumstances, colour can be used to distinguish goods and services relative to competing products. This means that colours may be used to signify badge of origin by fulfilling requirements of trade mark registrability. The determination of whether a colour should be kept free for trade depends upon the number of registrations for a colour or colour scheme.
Apart from this, the ECJ also recognises that there are only a limited number of colours available since the public is able to only recognise only a number of colours. However, the court also provided that average consumers are not able to distinguish goods and services based on colour. This means that even if there are a limited number of colours, the limited number of trade mark registrations for the colour will not exhaust the entire colour range. This implies that the restriction of colour registration would also depend upon the volume of applications for a colour within a given market, industry or product class. The need to free a colour from trade mark registration also depends upon this.
In the case of the United States, it has abandoned the colour depletion theory but the theory emerges only in considering the functionality test in the consideration of colour trade mark applications while in the case of the European Union, the colour depletion theory was also abandoned but some of related principles are recognised as assumptions in the application of the tests for registrability.
Australia has rejected the colour depletion theory because this is inconsistent with the legal provision explicitly allowing the registration of colour as trade mark. In order to address the issue of limited colours, case decisions have provided for requirements to be complied with by applicants in order to ensure that there would be no monopoly of colour as trade mark or the registration would not result to unfair conditions among competitors.
The United States, European Union and Australia have abandoned the colour depletion theory. However, the theory arises in the application of their trade mark laws in different ways. In the United States, the colour depletion theory arises in the case of the consideration of colour trade mark applications in using the functionality test. In the European Union, some of the principles related to the theory have been used as assumptions in supporting the registrability of single colour trade marks. In the case of Australia, limited available colours set forth under the colour depletion theory was used as basis in establishing the requirement that the colour and its use should not be common or generalised so that there is no longer distinctiveness. While the US, EU and Australia find the colour depletion theory of use to the development of their trade mark laws, in the UAE, the colour depletion theory has yet to become a significant part of the development of its trade mark legislation.
Conclusion
Trade mark in the different jurisdictions serves an important legislative function, that of ensuring differentiation of competing or similar products and services by protecting the distinctive manner that business firms have used marks to associate with commodities through registration. In this way, business firms are able to have another means of channelling the extent of competition in the market.
Colour is one of the trade marks that business firms may use in distinguishing their products and services. Colour as a mark has been recognised by international law through the Paris Convention and the supplemental TRIPS agreement, by the European Union through its directives, and by the national laws of several jurisdictions such as the United States and Australia.
On one hand, despite the enshrinement of colour trade mark registration in legislations, its application offers similar and differing issues in the various jurisdictions. In considering the case of the US, EU and Australia, all have statutes supporting the registration of both single colours and colour combinations subject only to the requirements that applicant need to comply with in the various jurisdictions. In relation to tests for registrability, the common requirement in all jurisdictions is the distinctiveness of the utilisation of the colour associated with a good or service. In terms of the colour depletion theory, this has been similarly abandoned in the three jurisdictions with the difference present only in the manner that the theory influenced trade law application.
On the other hand, there are also jurisdictions where colour as a trade mark is deemed not registrable while other jurisdictions have kept the registration of colours as trade mark subject to future determination such as the United Arab Emirates.
Credit:ivythesis.typepad.com
0 comments:
Post a Comment