Rouse IPEX issue No. 268 reported on a landmark litigation implying registrability of a colour-combination trade mark. We can now read in Rouse IPEX issue No. 270 that the Beijing No.1 Intermediate People’s Court has given its decision:
“That, although there is no reason, in principle, why colour-combination marks should not be registrable, the Plaintiff’s colour-combination mark lacked distinctiveness and was, therefore, unregistrable.”
“The Court considered that where a mark acquires distinctiveness, it can be registered, whether it is a colour combination mark, or a mark of any other type. However, in this case, the Plaintiff’s colour-combination mark was not distinctive. The mark was too simple for consumers to recognise it as an indication of source of the goods. Thus, the Court ultimately ruled in favour of the Defendant, rejecting the Plaintiff’s claim.“
Relevant law
Article 15(1) of TRIPS: Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.
Article 8 of the Chinese Trademark Law: Any visual sign capable of distinguishing the goods or service of one natural person, legal person or any other organization from those of others, including words, devices, letters, numerals, three-dimensional symbols, combination of colours or the combination of the said elements may be applied for the registration of a trademark.
Article 11 of Chinese Trademark Law: The following shall not be registered as a trademark: (3) trade marks which are devoid of any distinctive character.
