How many trademarks you need?
What to choose wordmark , color mark , black and white or complete color Trademark.
At company360 we often come across variety of questions about Trademarks registration, generally people are confused between filing a logo or a colored logo or the logo as it is? What exactly is the difference between the colored logo and black and white logo. What to opt when your budget is tight and how you should decide the whether you need both.
Sadly, all these questions do not have so straight forward answers.
So, in order to finally decide we need to understand the scope of protection that colored or balack and white mark provide and how this seen in and around the Trademark itself.
Suppose, you have a brand that is a unique word, written in stylised manner but just any chosen color. So should you opt for black and white or colored logo.
The answer lies in the simple question. What exactly is giving a distinctive or identifiable feature to the mark?
Is it the color, is the look of the mark or is it the complete representation.
In case it is color, opt for colored trademark.
In case it is the design recognisable with or without color, you may go for black and white Trademark.
In case the mark is unique because of both color and design, opt for both..
Now, let us explain this concept of distinctive or identifiable feature by way of examples and case laws.
Color of Mc donalds logo the red and golden M is unique, so even though you write honey burger or any other burger in this logo you are bound to get trademark objection.
Because it’s their color scheme that provide them a distinctive feature which is commonly identified by the general public.
In this case to have a colored logo protected is very essential.
Second case, take the example of surf detergent packaging star design. That star design is essentially a distinctive feature of the mark Surf, so it is indeed important to protect that design.
Now, lets take example of Nike which is a private limited company with swoosh symbol. The stylised tick mark is identifiable in its own capacity and no matter what color it is this symbol is associated with Nike, Hence, One online trademark registration application will be suffice that can be black and white also.
Now, let us proceed to few case studies
Multi-colored candy packaging (Life Savers v. Curtiss Candy Co.)
The court in this case denied Life Saver protection of their striped colors, citing that it was a "general practice of the trade" for candy manufacturers to sell their candy in packages with multi-colored backgrounds for their assorted flavored discs, and labels with single colored background for their packages containing one flavor of candy discs." They concluded that the multi-colored background was in fact descriptive and served as a ready identification of the flavor of the candy in the package. Here we can see that court denied exclusive right over packaging as the color combination was a non-distinctive, common trade practice and is functional in nature.
Functional means like color green is use to mark vegetarian food and red is used to identify non-vegetarian food.
Now let us take an example where courts have awarded protection to color as distinctive feature of the mark.
We know about the luxury brand Tiffany and Co. Which owns "robin's egg blue" for its boxes and bags, the courts dis recognised their exclusive right over the color even though it’s a single color as their packaging is indeed recognised by general public for luxury bags by this color. The court observed and stated ”You can paint your house that color, for example, without having a problem. Given the wide range of products Tiffany sells, and the uniqueness of their shade of blue, they are protected from other jewelers who would use the same color for boxes or packaging. Otherwise, there would be brand confusion”.
Hence, we conclude that it is indeed a complicated issue as to whether to go for black and white or colored trademark or shall you file both. As, it is dependent on the single question what is making your mark distinctive, identifiable or adding and extra touch to your brand.
Therefore, it has been commonly observed that big corporates file for both be it color mark or black and white logo.
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