Industrial Property Law

Former Article L. 711-1, c), of the Intellectual Property Code, mentioned as capable of protection “arrangements, combinations or shades of colors”. The registration of a shade of color may take the form of combinations or arrangements of colors demarcated or ordered according to a certain arrangement, or of combinations without any particular arrangement or demarcation. In all cases, the protecti …

Colors

Former Article L. 711-1, c), of the Intellectual Property Code, mentioned as capable of protection “arrangements, combinations or shades of colors”. The registration of a shade of color may take the form of combinations or arrangements of colors demarcated or ordered according to a certain arrangement, or of combinations without any particular arrangement or demarcation. In all cases, the protection applies to the color or combination of colors of the product, regardless of the shape on which it is applied, even when the shape of the product or part of the product plays a role in delimiting the color in space .

The requirement of clear and precise representation is of particular importance in the case of a shade of color: an imprecise representation could contravene the general interest in not unduly restricting the availability of colors to other operators offering similar products . The monopoly situation conferred by trademark law presupposes a requirement of identification of the color which is reliable, precise and objective, leaving no room for interpretation by the relevant public, by describing precisely its hue, its colorimetric purity, its luminance and its illuminant . When the sign consists of a color or a combination of colors, the designation of each color by an internationally recognized identification code meets the criterion of clear and precise representation . This is the case for the color pink “pantone 212” to designate dairy products , for the color “pantone process blue quadri cyan 100%” to designate goods and services related to sports  , or for the color red “pantone 18.1663TP” to designate shoes . On the other hand, this is not the case of the simple reproduction on paper of the color in question, even if accompanied by a verbal description . A shade of green-brown defined by reference to its light transmission curve, wavelengths and trichromatic coordinates  or a drawing with several shades of red not defined by a reference allowing to identify the color with precision, the figure supposedly representing a sole with several shades of red , lack precision.

A combination of colors can be protected as long as it is defined or arranged according to a certain form and that it fulfills the criterion of distinctiveness, even if the colors which compose it are not precisely defined or are primary colors. This is the case of a combination of colors, yellow and black, arranged in a particular way, on the different parts of the reproduced tools , or of two shades of green and yellow arranged in two juxtaposed vertical bands, the representation of which proceeds from an arbitrary arrangement of determined colors that do not represent the natural colors of the designated products, and the association of which is not usually used to the point of being known by the public . The representation of two or more colors designated in an abstract way, without outline  or the application which designates four colors when the visual representation includes only two of them, one of these colors not being identified by an internationally recognized code , are not sufficiently precise.

CJEU Case C-163/16 Louboutin and Christian Louboutin (SAS), Judgment of 12 June 2018, LawLex201800000904JBJ.

CA Paris, 16 September 2009, LawLex202100006328JBJ.

CA Paris, 6 February 2002, LawLex202200000955JBJ.

CA Rennes, 27 April 2010, LawLex202200000957JBJ.

ECJ Case C-49/02Heidelberger Bauchemie GmbH, Judgment of 24 June 2004, LawLex200900000977JBJ, cited above.

CA Paris, September 16, 2009, LawLex202100006328JBJ, in this case the figurative mark represented navy blue and pink stripes, and its wording indicated “pantone colors: cyan 100, magenta 70, black 80, pink 203C”.

CA Paris, 26 November 2010, LawLex201100000154JBJ.

ECJ Case C-104/01 Libertel Groep BV, Judgment of 6 May 2003, LawLex200900000317JBJ; Case C-49/02 Heidelberger Bauchemie GmbH, Judgment of 24 June 2004, LawLex200900000977JBJ.

Cass. com, 30 January 2001, LawLex200200000670JBJ; see also CA Versailles, 15 March 2001, LawLex200000655JBJ, holding that the color pink pantone 1555 C is capable of being protected to identify perfumes.

Cass. com, 10 May 2006, LawLex202100005264JBJ.

CA Paris, 15 May 2018, LawLex202200000508JBJ, the description of the mark consisting of the color red, Pantone code 18.1663TP, applied to the sole of a shoe as represented, is clearly and precisely defined by the combination of a specific color and the equally specific location of that color.

CA Paris, June 22, 2011, LawLex202200000956JBJ; enshrined in Cass. com, 30 May 2012, LawLex202100005265JBJ.

Industrial Property Law

37. Colors

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Les décisions de justice citées dans ce paragraphe :

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37. Colors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise