The Trademarks Act, 1999 and the Trademark Rules, 2002, essentially protects the shape of goods, packaging and color combinations. According to the Act, trademark means “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors.”1 From this definition we can identify two ingredients that are essential to avail trademark registration. One, the mark must be able to be graphically be represented and secondly, it must be capable of distinguishing one’s business from others. Thus, from the given definition a combination of colors can get trademark registration if it fulfills the above mentioned two ingredients.
The applicant while filing for registration, must submit required evidence in showing that the combination of colors is solely associated with the applicant’s business and also in the eyes of the public, the combination of colors are associated with the goods or products even though it does not have any functional utitlity. Here, the burden lies on the applicant to prove it unique association with his products and its distinctiveness.
Response of the Indian Judiciary
One of the landmark judgments in which the courts analyzed the scope of color combination as trademark was in the case of Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd.2 In this case; Colgate filed an ad interim injunction against the color combination of one- third red and two- third white order on the tooth powder of Anchor. Here the court observed that when a illiterate, unwary and gullible customers at first look without going into the minute details identify the product to be associated with one brand and the sae has been copied by another brand amounts to be passing off. The court acknowledged color as a trademark and passed an injunction order.
In the famous Cadbury case3, the court recognized the purple color (Pantone 2865C) as the color which people essentially associate with Cadbury. A public survey in this regard was also submitted.
In yet another landmark case of Deere & Co. & Anr. v. Mr. Malkit Singh & Ors.4, the Delhi High Court granted protection to Deere tractors for the color combination of green and yellow which had been used for over a period of 100 years in tractors used for agriculture, its distinctiveness, reputation and people’s instant source of identification.
In Christian Louboutin v. Abu Baker5 the Delhi High Court refused to grant protection to the use of a single color ‘red’ on the sole of the heeled shoes by saying that a single color didn’t fall under the definition of marks under section 2(1)(m) of the Trademarks Act. Also, the usage of words ‘combination of colors’ shows the intention of legislature to exclude a single color for registration.
We might have heard about the General Mills case, where it was denied the trademark registration for its use of yellow color on the Cheerios cereal boxes as the color was so associated with a type of goods or services that a secondary meaning cannot be accorded to it.
Now any reasonable person could have this doubt in his mind as to why colors are protected and granted trademark registration. The main reason is that people while buying any particular good or service tends to look at its visual appearance as compared to its utility. Report says that 80% of the people buys products by its visual appearance especially color.
In today’s competitive world the importance of color cannot be underestimated or considered as invaluable. Such non- conventional registration of colors is a valuable asset to establish a face in the market. While the scope of it tends to be lower, the judiciary looks into the ‘distinctiveness’ character strictly. A single color as such cannot get any protection and so does any color that is generally associated with a particular goods or services. Most of the time, it depends on how customers perceive it.
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