Trademarks are impactful as they are the very first thing seen by consumers. A visually compelling design has the potential to build strong brand association and in turn, the design itself becomes significant to the identity of the brand itself.
Now, what if a specific colour is distinct to your brand?
Indeed, a colour can be representative of a brand, meaning the colour has an identification function whereby consumers are able to distinguish the brand from its competitors upon seeing the colour in use. Prominent examples include Tiffany Blue, associated with jewellery company Tiffany & Co and Louboutin Red, in relation to high end footwear company Christian Louboutin.
However, it is only in recent times whereby individuals and businesses are able to trademark a colour specific to their brand as colour marks were previously considered as not distinctive enough to be trademarked.
The Trademarks Act 1976 granted individuals and companies the right to trademark conventional marks, such as names, labels, words, letters and numbers. The Act has been revised since and the Trademarks Bill 2019 grants individuals and companies to register trademarks such as smell, sound, shape and colour.
However, it must be emphasised that the rules and regulations governing the trademarking of a colour varies from country to country. Should you wish to register a colour mark in Malaysia or internationally, there are several points to keep in mind before you make your move.
Define your trademark using international colour identification codes.
You must be precise when defining your colour mark. Should you define your colour mark as, for example, ‘Forest Green’ or ‘Salmon Pink’, governing bodies reject your mark on the grounds that you have not provided sufficient or detailed information for your colour mark to be registered. By using an internationally recognised identification code, such as the Pantone Matching System, you can pinpoint exactly the particular shade you wish to register by identifying the colour code relevant to your colour mark. Furthermore, knowing the colour code specific to your mark will ensure that manufacturers and marketers will utilise the correct colour when working for your brand.Other international colour identification codes include Hex Colour Codes.
Your colour trademark can acquire secondary meaning.
Should you have used a colour in relation to your brand over a prolonged period of time, in relation to your brand’s good or service, you may be able to demonstrate to the court that your colour mark has developed secondary meaning. Secondary meaning occurs when consumers are able to identify the colour used in association to your good or service to a source, namely your brand. You must be able to demonstrate the use of the colour mark in relation to your brand through various aspects such as geographically, frequency, duration and so on. Advertising and market research are crucial avenues in showing evidence that your colour mark has developed secondary meaning in the market.
Your colour trademark must not be functional.
The colour used to identify your brand should work on an aesthetic level, meaning the colour should only function visually to distinguish your goods or service from your competitors. Should it perform a utilitarian function, you will not be able to register your colour mark even if the colour is distinct to your brand. For instance, Calpol will not be able to register its distinct pink colour as a colour mark as its colour is a natural by-product of the medicine’s chemical composition. Furthermore, your colour mark should not be indicative of the quality of the good or service, for example, weight, size, or volume.
Applying for trademark protection for a colour mark can be the best decision you will make for your brand if the colour in use increases the distinctiveness of your good or service or heightens the awareness and reputation of your brand. If you are unsure of protecting your colour mark, speak to a trademarking agent to determine if trademarking is the best decision for your brand.
Quality Oracle are proud of 28 years of professional experience in trademark registration and protection. Get in touch today to reach your trademarking goals for tomorrow and beyond.