What to choose wordmark, colour mark, black and white or a complete colour Trademark ?
At COMPANY360 we often come across variety of questions during Trademark registration generally people are confused between filing a logo or a coloured logo or the logo as it is? What exactly is the difference between the coloured logo and black & white logo. What to opt when your budget is tight and how you should decide whether you need both of them.
Sadly, all these questions do not have so straight forward answers.
In order to decide we need to understand the scope of protection that a coloured or black and white mark provides and how this is seen within and around the Trademark itself.
Suppose, you have a brand that is a unique word, written in a stylised manner but can be in specific chosen colour. So should you opt for black and white or coloured logo. The answer lies in the simple question. What exactly is giving a distinctive or identifiable feature to the mark? Is it the colour, is the look of the mark or is it the complete representation. In case it is colour, opt for coloured trademark.
In case it is the design recognisable with or without colour, you may go for black and white Trademark. In case the mark is unique because of both colour and design, opt for both.
Popular Case laws.
Colour of McDonalds logo the red and golden M is unique, so even though you write honey burger or any other burger in this logo you are bound to infringe their Trademark.
Because it’s their colour scheme that provide them a distinctive feature which is commonly identified by the general public. In this case to have a coloured logo protected is very essential.
Second case, take the example of surf detergent packaging star design. That star design is essentially a distinctive feature of the mark Surf, so it is indeed important to protect that design.
Now, lets take example of Nike symbol. The stylised tick mark (swoosh mark) is identifiable in its own capacity and no matter what colour it is this symbol is associated with Nike, Hence, One trademark application will be suffice that can be black and white also.
Popular case Studies
Multi-colored candy packaging Life Savers v. Curtiss Candy Co.
The court in this case denied Life Saver protection of their striped colours, citing that it was a “general practice of the trade” for candy manufacturers to sell their candy in packages with multi-coloured backgrounds for their assorted flavoured discs, and labels with single coloured background for their packages containing one flavour of candy discs.” They concluded that the multi-coloured background was in fact descriptive and served as a ready identification of the flavour of the candy in the package. Here we can see that court denied exclusive right over packaging as the colour combination was a non-distinctive, common trade practice and is functional in nature. Functional means like colour green is use to mark vegetarian food and red is used to identify non-vegetarian food.
Tiffany and Co.
Now let us take an example where courts have awarded protection to colour as distinctive feature of the mark. We know about the luxury brand Tiffany and Co. Which owns “robin’s egg blue” for its boxes and bags, the courts dis recognised their exclusive right over the color even though it’s a single color as their packaging is indeed recognised by general public for luxury bags by this color. The court observed and stated
”You can paint your house that color, for example, without having a problem. Given the wide range of products Tiffany sells, and the uniqueness of their shade of blue, they are protected from other jewelers who would use the same color for boxes or packaging. Otherwise, there would be brand confusion”.
Hence, we conclude that it is indeed a complicated issue as to whether to go for black and white or colored trademark or shall you file both. As, it is dependent on the single question what is making your mark distinctive, identifiable or adding and extra touch to your brand. Therefore, it has been commonly observed that big corporates file for both be it color mark or black and white logo.
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