Skip to content

Bottega green, Hermès orange and Tiffany blue. Several colours have become true “trademarks”. But are they really protectable as trademarks in the legal sense?

Tiffany blue, Bottega Veneta green and Hermès orange – these labels are not the only ones associated with a particular colour. Accordingly, many houses have made efforts to register their own colour tones as trademarks and thus secure them for themselves. The problem: everyone has an interest in being able to use colours. If only one company were allowed to use a certain colour, this would considerably limit the creativity of others.

Examples: “Bottega green” and “Hermés orange”

Can colours be protected as trade marks at all?

Monopolisation in favour of a company is possible, but may only take place under narrow conditions. On the one hand, there are abstract colour marks. In this case, only a certain colour or a combination of several colours is protected. On the other hand, there are also concrete colour marks, which protect the colour in a certain design, for example, the famous red Louboutin soles. Today’s entry focuses on abstract colour marks.

The protectability of such colour marks has been recognised in principle in the European Union (EU) since the “Libertel” judgment of the Court of Justice of the European Union (ECJ) in the 00s. The Court ruled that colours can in principle serve as an indication of the origin of certain goods or services and thus fulfil the function of a trade mark. However, consumers usually only see a colour as an indication of the supplier of a product if other identifying circumstances are added, such as words or figurative elements on goods or packaging.

What we need: Distinctiveness

A colour mark can therefore only suggest the origin of products and develop the necessary distinctiveness on the market through further circumstances.

This is particularly useful in the fashion and luxury sector, where the number of goods and services for the colour mark applied for is limited and the relevant market is very specific.

If the abstract colour is “inherently” devoid of any distinctive character for the goods or services claimed, this obstacle can be overcome if this colour has “established itself in the market” as an indication of origin for the goods or services claimed.

This means that a significant proportion of consumers recognise an indication of origin in the abstract colour “in real life”. Then the abstract colour has “established itself” in connection with the claimed goods in such a way that the targeted public immediately associates the colour with the commercial origin. To prove this, a survey may have to be conducted.

Ok and what do I have to do for this in concrete terms?

In order to achieve a positive result on this point, labels often use the shade to be protected aggressively in branding and marketing.

Again, one can think of Bottega Veneta’s shade of green. The salons operated under Daniel Lee’s recently ended design reign were the same shade of green as the boxes in which the Tire and Puddle Boots (also available with a (surprise) green sole) were sold. Moreover, the tone is very present in their advertorials.

To date, the Italian brand has not applied for registration. Bottega Veneta has, however, been trying for a long time to register “non-traditional” signs as trademarks, think for example of the leather-Intrecciato or the well-known Bottega Veneta-knot.

In addition, in the case of colour marks to be registered, it is necessary that the exact shade can be determined, e.g. by indicating the Pantone code. A mere reference such as “eggshell blue” for Tiffany is therefore not sufficient.

Hm, I still have a few questions …

Then just write to us!