Last month, the EUIPO refused an application made by Amazonen-Werke H Dreyer SE & Co KG (Amazone) to register a trade mark for the colour combination of green and orange. The application was refused on the basis that the company had failed to demonstrate that the combination had acquired distinctiveness throughout the EU.
Amazone, a German agricultural machinery manufacturer, applied to register the green and orange colour combination with the EUIPO in class 7 which covers agricultural machinery. The application was originally rejected on the basis that it was deemed to be ‘devoid of any distinctive character’, as per Article 7(1)(b) of the European Trade Mark Regulation (EUTMR). Amazone subsequently claimed under the Article 7(3) EUTMR exception that the mark had become distinctive through use in the EU.
Amazone’s claim was primarily based on market survey data conducted in France which found that 63% associated the colour combination with Amazone’s brand, along with statements taken from the public in Germany. Evidence demonstrating commercial activities in 14 EU Member States was merely considered subsidiary evidence. Consequently, the EUIPO found that Amazone had failed to establish that the mark had acquired distinctiveness throughout the EU due to the narrow geographic scope of the primary evidence submitted. Additionally, the EUIPO determined that the applicant had failed to prove that the mark had become distinctive independent of its word mark ‘AMAZONE’.
This demonstrates the difficulty of establishing the inherent distinctiveness of colour marks. Further, the EUIPO has reinforced the importance of submitting evidence of broad geographic scope where applicants wish to assert that their use of a mark has seen it become distinctive throughout the EU’s territory.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
