Colour mark rejected: Why 'traffic red' for drawer guides receives no trade mark protection

The registration of a colour mark is often more difficult than expected, particularly when dealing with everyday colours. A recent decision by the EUIPO (European Union Intellectual Property Office) illustrates the hurdles that exist when registering a colour mark as a Union mark.

The case: Colour mark 'traffic red' for drawer guides

Fulterer AG & Co KG, based in Austria, filed an application with the EUIPO for the registration of colour RAL 3020 – a vibrant traffic red – as a Union mark. The colour mark was to apply to various drawer systems and furniture components in classes 6 and 20, and was intended exclusively for commercial customers. The components, in particular made of metal or plastic, were to acquire a distinctive brand identity through the red colouring.

However, the Office rejected the application. The reason given was the lack of distinctive character within the meaning of Art. 7 (1) lit. (b) of the Union Trade Mark Regulation (UTMR).

What is distinctive character – and why is it lacking here?

Distinctive character is the central criterion for any trade mark registration. It means that a sign (such as a colour) must be capable of distinguishing goods or services of one undertaking from those of other undertakings. Colours as such, however, are generally not distinctive, unless they deviate significantly from industry practice or have become established through intensive use in the market as an indication of origin.

In the 'traffic red' case, the Office saw no such special feature. Rather, in the view of the examiners, this is an everyday, widely used colour. It is known from road traffic, is used as a warning colour and has, in particular in the industrial sector, a functional significance – such as for signalling or hazard marking.

Arguments of the applicant: Market behaviour and industry practice

In its statement, the applicant had emphasised that the red colour is deliberately used on certain components to stand out visually from the usual metal colours (silver, grey). It also pointed out that competitors also use certain colours for their products: for example GRASS GmbH (green), Accuride (blue) or Julius Blum GmbH (orange).

However, the Office was not convinced by this argument. The fact that market participants use colours for visual differentiation is not evidence of the colour's function as an indication of origin. Rather, this speaks more in favour of an industry practice – but not for the uniqueness or originality of the colour tone itself.

A central point: The mark was registered purely as a colour tone (RAL 3020), that is, without graphic elements or combined effects. However, such a colour tone is not suitable to be perceived as an independent trade mark sign – in particular by a broad public throughout the EU who the applicant does not necessarily know.

The decision: No registration

The EUIPO consequently rejected the registration of the colour mark in full. It was not apparent that the colour tone 'traffic red' would be indicative of origin in any way. Rather, the colour serves a functional or decorative purpose, such as for better visibility of the components. The applicant also did not raise any argument regarding acquired distinctiveness through use, that is, demonstrable habituation of the market to the colour as a mark.

The company may appeal against this decision.

Conclusion

The case exemplifies how difficult it is to register a featureless colour as a mark. Particularly with common colours, companies must very clearly explain why this specific colour tone fulfils a function indicative of origin.

Our practical tips for trade mark applicants:

1. Avoid standard colours: Choose the most original or unusual colour combinations possible in order to achieve greater distinctive character.

2. Combine colours with graphic elements: A pure colour without shape, text or design is difficult to protect as a mark.

3. Prepare evidence: If a colour already stands for your undertaking on the market, document this use systematically (e.g. through market research, sales figures, customer surveys).

The experienced lawyers in trade mark law at AVANTCORE advise and represent companies comprehensively in the registration and enforcement of their trade mark rights. Whether word mark, figurative mark or colour mark – please feel free to contact us.