“A colour trademark is a non-conventional trademark where at least one colour is used to perform the trademark function of uniquely identifying the commercial origin of products or services. In recent times colours have been increasingly used as trade marks in the marketplace. However, it has traditionally been difficult to protect colours as trademarks through registration, as a colour as such was not considered to be a distinctive ‘trademark’. This issue was addressed by the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights, which broadened the legal definition of trademark to encompass “any sign…capable of distinguishing the goods or services of one undertaking from those of other undertakings”.
Registration of Coloured trademark
The procedure of trademark registration of color trademark is provided in the Trademark Act. First of all, the person who wants to acquire registration is required to file an application for registration of trademark in respect of goods or services to the competent Registrar of trademark. The Registrar may either refuse or accept the application. If the Registrar accepts the application then the next step is to advertise the application. When an application has not been opposed and accepted, the registrar registers the particular trademark.
Registration of Single Colour Trademark
Registration of single colour trademark is granted only in very specific or uncommon cases because many of the average consumers do not assume the origin of goods and services based exclusively on their colour. It can be registered if two things are there:
· If it is very unusual and peculiar in a business.
· If it is recognised by consumers that it serves as a symbol of origin for particular goods.
In most of the cases application for single colour trademark registration is objected by the Trademark Examiner because they lack the capacity to distinguish particular goods from similar goods.
Registration of Combination of Colour Trademark
A combination of colours can be registered. Two things are required for this purpose:
· They should be unique.
· They are capable of distinguishing goods and services from similar goods and services.
To receive combination of colour trademark registration it is necessary to prove that the colours are likely to strike the consumer as an indication of trade source.
To avoid trademark objection reply in future evidences should be presented at the time of registration which clearly shows that colour trade mark is capable of representing product of a particular business organisation and it is exclusively related to the that business only. In India single Colour trademark registration is very rare. The amount of Combination of Colour Trademark registration is high. The procedure of registration of both type of trademark is similar. In India, Business Organisations can acquire Colour or Combination of Colours Trademark by adopting the procedure of registration. Having proper trademark registration after pvt ltd company registration has become mandatory in India and across the world today.
Color claim for trademarks in the USA
When filing a trademark in color in the United States through the United States Patent and Trademark Office (USPTO), the color claim will be automatic if the image of the trademark is in color.
If color is not to be claimed for the trademark, this will have to be stated at the moment of filing and the image of the trademark must be in black and white or in scales of grey.
Claiming color in a trademark in the USA will limit the owner’s right to only using the trademark in this color. It is important to note that in the USA use of the trademark will have to be demonstrated throughout the trademark’s life in order for the mark to remain valid. If the owner registers the trademark in one color and when asked to demonstrate use of the mark only has evidence of the mark being used in a different color, the evidence (specimen) of use will be refused. In such case, the trademark will lapse.
Again, use of the trademark must be identical to how it is registered. Changes in color are only accepted if color is expressly NOT claimed.