Recent legal developments reveal complexities in registering colours as trademarks in the EU.
- Veuve Clicquot faces legal challenges over its trademark orange hue.
- The concept of ‘secondary meaning’ plays a central role in trademark cases.
- A decision from the Court of the European Union impacts future trademark registrations.
- Companies must prepare thorough evidence to secure colour trademarks.
In a significant legal dispute, Veuve Clicquot, part of the LVMH group, has sought to trademark the distinctive orange colour associated with its champagne bottles. This case hinges on the concept of ‘secondary meaning’, where a colour becomes distinctive through extensive use over time, allowing it to be registered as a trademark, despite colours lacking inherent distinctiveness.
Historically, few exceptions, such as Ferrari red and Tiffany blue, have achieved this status. However, Veuve Clicquot’s attempt to register its orange under the European Union Intellectual Property Office (EUIPO) was met with challenges. The company avoided specifying colour codes, opting for a general description instead. This led to the Board of Appeals ruling that the application resembled a figurative mark rather than a straightforward colour trademark, rejecting the initial registration.
Lidl, another company, contested the Board’s decision by appealing under Article 263 of the Treaty on the Functioning of the European Union (TFEU). The appeal questioned whether Veuve Clicquot’s colour had attained secondary meaning across individual European markets. Ultimately, the Court of the European Union annulled the EUIPO’s decision, citing insufficient evidence from Greece and Portugal, highlighting the need for comprehensive proof across all EU countries.
The Court’s decision signals to companies that achieving a colour trademark requires extensive evidence of secondary meaning throughout the EU. It underscores the importance of showing that consumers can identify a product source solely by its colour across diverse markets. The ruling sets a jurisprudential precedent for the quantity and quality of evidence necessary for such registrations.
This case underscores the complexities involved in securing a colour trademark within the EU, emphasising the need for detailed evidence of secondary meaning.
