Registered colour marks shown to be powerful tools
Legal updates: case law analysis and intelligence
In Belgium, infringements of colour marks are often easily demonstrated and accepted by the courts on the grounds that a mark which has acquired distinctiveness through use tends to be regarded as having acquired a reputation. The factors to consider in examining whether a mark is well known are identical to those for the process of familiarising the relevant public. Marks that are well known because of the use made of them enjoy a broader scope of protection.
Two recent decisions have demonstrated that, once registered, a colour mark can be a powerful tool.
In John Player & Sons Ltd v Savelux (2008/AR/2318, March 21 2011), the Court of Appeal of Brussels held that filter tips which were sold in packaging that bore the name Jumbo and predominantly used a particular shade of blue infringed the well-known Benelux sky-blue colour mark used for Rizla cigarette papers and tobacco-related products.
Benelux sky-blue colour mark
The court held that it was clear that such use took unfair advantage of the reputation of the mark, as the infringer had exploited the effort and resources invested in building up the mark's image and reputation.
In Red Bull v Powerdrinks Group (A/10/06233, June 8 2011), the president of the Commercial Court of Brussels ruled along similar lines, upholding a claim of infringement of Red Bull's well-known abstract colour mark in blue and silver, depicted below.
The president also found that an energy drink sold under the slogan ‘for a night full of power’ and with a blue-and-silver colour scheme - with the two colours covering near-identical areas of the can, when compared with Red Bull's product - gave rise to a likelihood of confusion with Red Bull's colour mark.
The court considered that the colour scheme should be regarded as an independent and distinctive element of the can, which served as "an eye-catcher in the perception of the average consumer", and could therefore be challenged as such, regardless of the words used on the can.
Paul Maeyaert and Jeroen Muyldermans, ALTIUS, Brussels
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