A brand often encompasses words and/or pictures but the identity of few brands is, literally, black or white; there is usually some form of colour involved. Some brands are of course all about the colour in that it forms an integral part of the corporate or product identity, think of any well-known brand and undoubtedly a colour association will come to mind.
Using a colour is of course different to exclusively “owning” a colour and the registration of colour marks has been a vexed and interesting issue for some time. Single colour marks are the area where most discussion arises. The question as to whether an entity can truly own a single colour raises a myriad of related interesting issues, not least of which is the fundamental point as to “What colour is it?” People see colour in different ways, it is subjective; I see pink, my wife sees salmon, blush, fuchsia, rose etc. Unlike words or pictures, there are in practice only a certain number of colours that can be perceived by the average consumer, leading to a finite pool of colours and therefore by definition, a finite number of owners.
Trade mark offices have sought to treat colour marks like any other trade mark; i.e. there must be a graphical representation (solved in the context of colours by reference to a specific Pantone) and the mark must be distinctive (solved by procuring evidence that relevant consumers do indeed exclusively associate that Pantone with those goods / services, hence long and uniform use is always required).
As a result, although there are numerous examples of colour registrations, the road to registration can often be hard fought to the bitter end.
For the past seven years, Germany’s savings banks and Spanish banking group, Santander, have been locked in a battle over the right to trademark a particular shade of the colour in Germany. On Thursday, Germany’s highest civil court ruled in favour of the savings banks.