Actualizado: 1 oct 2019
The Court of Justice of the European Union has cancelled two of Red Bull's colour trademarks in a recent decision. While the decision will not be of great practical importance to Red Bull (since like in the Adidas case, they have other, overlapping registrations), it has shed some light on the tricky matter of colour trademarks in the EU.
First, the facts of the case: Red Bull applied in 2002 and in 2010 for two colour trademarks for energy drinks inspired by the iconic design of their cans. The trademarks where graphically represented as follows:
Each application added a description. In the first case, it explains there is a ratio between both colours of "approximately 50%"; in the second, it mentions each colour is "of the same proportion and juxtaposed" .
While it's clear that Red Bull's brand image is associated with these two colours, it is always used in the very specific arrangement of a grid - which Red Bull failed to describe in their application. It is then not surprising when the CJEU confirmed a previous decision by the General Court that such trademarks were not valid.
In particular, it confirms that with the description at hand, the trademark would be too imprecise and allows for a plurality of reproductions that are neither determined in advance nor uniform, and thus not compatible with the EU regulation.
Fortunately for Red Bull, they have a recent back-up mark to cover for the intended use (to the left). This decision will then not affect their brand image as it is today, but it bars them from claiming exclusivity over any combination of silver and blue arranged in any manner - but we cannot know if this was their intention, or if they simply applied for the trademark in too vague a manner.
How to register colours
According to the EU trademark regulation, a trademark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds. So, as long as they are distinctive and are accurately represented, colours may indeed be trademarked. Colour trademarks are different from figurative trademarks in that they can be designated in the abstract without shape or contours - but as we have just seen, not too abstract, they must be arranged in a predetermined and durable way (Heidelberger Bauchemie case).
The problem with colours is that they are limited and intrinsically not distinctive, so granting exclusivity over too many of them would hurt market competition. Applicants have a high standard to meet in terms of proving the colour has acquired distinctiveness - this means they need to show that consumers already identify the products and services of the applicant with that colour.
Some examples of successful colour trademarks are the Milka Chocolate purple and the John Deere green and yellow combination.
The Red Bull decision sheds some light on how to apply for colour trademarks correctly, and also reminds us once again that, in a market saturated with registrations, it's crucial to be as accurate as possible when applying for a trademark.
You may read the decision here.