• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
+49 (0) 69 / 606 278 – 0
[email protected]
Contact form
Patent- & Rechtsanwaltskanzlei

Patent- & Rechtsanwaltskanzlei

  • Deutsch

+49 (0) 69 / 606 278 – 0

  • Facebook
  • Twitter
  • Instagram
  • LinkedIn
  • xing
  • Email
MENUMENU
  • Services
    • Advice On Protective IP Rights
    • Patent Application /TM Registration
    • Enforcement Of IP Rights
    • Defence Against IP Rights Enforcement
    • Costs
  • Company
    • Fields of Law
      • Patent Law
      • Utility Model Law
      • Employees‘ Inventions
      • Trademark Law
      • Design Law
      • Trademark and Product Piracy
      • Expert Opinions
    • Our Law Firm
      • Dr. Karl-Hermann Meyer-Dulheuer
      • Dr. Tim Meyer-Dulheuer
      • Dr. Klaus Zimmermann
      • Zhichao Ying
      • Dr. Christoph Hölscher
    • Commitment
  • Contact
    • Where To Find Us
    • Write us!
    • Request call back
  • Blog

ECJ confirms invalidity of Red Bull blue-silver colour mark

29. July 2019

The description of the systematic arrangement of the colours is a legitimate requirement for a colour combination mark, the ECJ ruled today and confirmed the invalidity of the Red Bull colour combination mark blue-silver.

Red BullRed Bull had filed two colour combinations as Union trade marks in 2002 and registered them as Community trade marks in 2003.  The two signs protected by trade mark law were reproduced graphically in the form of two parallel vertical blocks, each with the same surface, one in blue and the other in silver. The corresponding description indicated for the first sign that the ratio of each of the two colours was “about 50% – 50%”, and for the second sign that the two colours stood side by side and were applied in equal parts.

Red Bull’s colour combination mark was declared invalid following opposition by Optimum Mark (Poland). This decision was confirmed by the Cancellation Division as well as by the European Court of First Instance (CFI). The contested mark does not satisfy the requirements of Article 7(1)(a) of Regulation No 207/2009 since its graphic representation does not satisfy the conditions laid down by case-law.

Accordingly, a graphic representation must be clear, precise, self-contained, easily accessible, intelligible, durable, objective and systematically arranged in such a way that the colours are joined in a predetermined and consistent manner.

Definition of the color mark

A colour mark is a sign consisting of a colour without shape or contour or of a combination of colours.

Therefore, a colour mark consisting of a single colour cannot be represented by a mere colour sample alone, in particular because a colour sample may change over time. A colour description in accordance with an internationally recognised colour classification system is mandatory.

The same applies to the requirement for colour combination marks that the spatial and uniform arrangement of the colours concerned must be described, as must the relationship between the colours concerned (Heidelberger Bauchemie judgment ((C 49/02, EU:C:2004)).

There is a general interest in ensuring that the availability of colours is not unduly restricted to all other economic operators. Moreover, a color is usually a simple property of things. A trademark, on the other hand, should always be an indication of the origin of the product. The registration of an abstract colour mark therefore always depends on the context.

Red Bull referred to this in its argument before the Court. The beverage manufacturer refers to the very high degree of recognition achieved by Red Bull’s colour combination and refers to the distinctive character of that colour combination.

Red Bull argued that the registration of the mark had already been refused by the unjustified requirement of a binding spatial arrangement of the colours, without being able to prove, in the context of the examination of distinctive character, the acquired distinctiveness or even to clarify the description of the two marks.

In addition, Red Bull argued that the interpretation of Article 7(1)(a) and (4) CTMR1 in the case of colour combination marks infringes the principles of equal treatment and proportionality.

The European Court dismissed Red Bull’s action in its entirety. The description of the systematic arrangement of the colours is a legitimate requirement for a colour combination mark and clearly necessary in order to fulfil the condition of clarity and precision which a mark must fulfil, the ECJ ruled, once again making clear the fact that colours may not be unduly limited for all other economic operators and that this alone requires care and clarity in the scope of protection of a colour mark.

Principles of equal treatment and proportionality

In the judgment under appeal by Red Bull, the CFI had established the premiss that colour combination marks were naturally less precise than other types of marks. The Court of First Instance had held that, unlike three-dimensional marks, colour marks are not per se bounded either by space or by shape or, unlike figurative marks, by contours; they are visual and not perceptible by sound or letters, as is the case with audio or word marks.  From this, the CFI concluded that the protection afforded by these marks must be defined with reasonable and particular precision.

In today’s judgment, the ECJ did not explicitly confirm this, but clearly refers to the requirements of Article 4 of these Regulations. Accordingly, the ECJ clarified that an applicant must provide a graphic representation which clearly and precisely defines the subject-matter and scope of the protection sought. If the application is accompanied by an description of the sign, the ECJ added, that description must serve to clarify the subject-matter and scope of the trade mark protection. Such a description must not conflict with the graphic representation of a mark or cast doubt on the subject-matter and scope of that graphic representation (see also Hartwell C:2019:261 ).

In its judgment, the CFI rightly stated that the representation for the registration of the disputed trademarks would enable a large number of reproductions, the ECJ confirmed the CFI’s judgment that this did not fulfil the requirement of clarity of any trademark application. Furthermore, the requirement that a mark consisting of a combination of colours must have a systematic arrangement linking the colours in a predetermined and uniform manner cannot transform that type of mark into a figurative mark, since that requirement does not mean that the colours must be defined by contours.

The ECJ therefore dismissed Red Bull’s action in its entirety.

 

Would you also like to protect your trademark or brand?

Our lawyers are experienced in trademark and patent law, national and international law.

 

Sources:

Urteil EuGH Red Bull EU:C:2019:641

Image:

Alexas_Fotos / pixabay.com / CCO License

 

  • share  
  • share 
  • share 
  • tweet 
  • share 

Category iconTrademark Law Tag icondescription,  graphic representation,  CFI,  colour combination mark,  ECJ,  blue-silver colour mark,  distinctiveness,  colour mark,  Red Bull,  trade mark protection,  jugdement

Reader Interactions

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Primary Sidebar

More articles about: Trademark Law

All articles

Blog Menu

  • Design Law
  • Healthcare & Lifesciences
  • International Intellectual Property
  • Licenses
  • News from our law firm
  • Overall
  • Patent Law
  • Product- and Trademark piracy
  • Trademark Law

Recent Posts

  • BPatG: Patent claim of cancer drug on active substance as salt 7. March 2022
  • Grant for European IP Protection: SME Fund 2022 4. March 2022
  • CODE-X vs. Cody’s: Likelihood of confusion in drinks? 25. February 2022
  • EOS lip balm no 3D trademark – appeal before ECJ not admissible 24. February 2022

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Das könnte Sie auch interessieren:

4. March 2022
Grant for European IP Protection: SME Fund 2022

Grant for European IP Protection: SME Fund 2022

25. February 2022
CODE-X vs. Cody’s: Likelihood of confusion in drinks?

CODE-X vs. Cody’s: Likelihood of confusion in drinks?

24. February 2022
EOS lip balm no 3D trademark – appeal before ECJ not admissible

EOS lip balm no 3D trademark – appeal before ECJ not admissible

21. February 2022
CFI: Pumpkin seed oil + PGI symbol

CFI: Pumpkin seed oil + PGI symbol

15. February 2022
SPOTIFY v POTIFY – a ‘pot’ app

SPOTIFY v POTIFY – a ‘pot’ app

10. February 2022
CFI: Shoes MADE IN ITALY

CFI: Shoes MADE IN ITALY

Contact us or request a call back

+49 (0) 69 / 606 278 – 0
[email protected]
Request a call back

Footer

Contact

Torhaus Westhafen
Speicherstrasse 59
D – 60327 Frankfurt am Main
Deutschland
+49 (0) 69 / 606 278 – 0
+49 (0) 69 / 606 278 – 199
[email protected]

Office Hours
Moday – Friday:   08:00-18:00

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Law Firm

  • Request non-binding call back
  • Company
  • Our Law Firm
  • ISO Certificate
  • Privacy Policy
  • Data handling for clients
  • Imprint

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • xing
  • Email

Newsletter Signup

© Patent- & Rechtsanwaltskanzlei Meyer-Dulheuer MD Legal Patentanwälte PartG mbB

Contact Form

 

Give us a call, send us an email or fill out the contact form.

+49 (0) 69 / 606 278 – 0
[email protected]

Kontaktformular

 

Rufen Sie uns an, schicken Sie uns eine Mail oder füllen Sie das Kontaktformular aus.

+49 (0) 69 / 606 278 – 0
[email protected]