The Colour of Identity: Better Protection of Colour Trademarks in India

Introduction : If you are able to recognize a pack of Cadbury from the far end of a supermarket aisle, then you would understand my point. For a long time now, this purple color has served as the brand's identifier even before the concept of jingles or endorsement by celebrities emerged. Simply put, colors have always been more than just aesthetically appealing features; they actually speak a language on their own. Unfortunately, the rules regarding registration of color trademarks in India are rather vague and confusing. 

Although the Trade Mark Act of 1999 does allow the use of color within trademark registration, it does not provide any definition or way of protection to colors used independently. It states, under Section 2 (zb) of the Act, that a "trademark may comprise a 'combination of colours'. There is no provision made here that excludes single colors. At first glance, this appears positive, but it really isn't.

The Global Contrast

The judicial decisions which different nations have reached reveal India's current standing on international standards. The Louboutin red sole saga exists as the primary reference point. The Second Circuit of the United States recognized in 2012 that a single color which represents the specific Pantone 18-1663TP red used on high-heeled shoe outsoles, had achieved sufficient secondary meaning to qualify for trademark protection. The EU courts reached their final decision after a lengthy legal battle which confirmed their previous ruling. The research investigated whether red possesses inherent distinctive traits which it actually lacks. The specific red color used in that context established the connection which consumers used to match the product with its manufacturer. 

The legal principle exists to prove that secondary meaning establishes acquired distinctiveness. A product needs to have special properties that distinguish it from all other products in existence. Consumers must recognize the product as having special attributes that set it apart from similar products. The standard proves practical because Indian courts have applied it although they remain inconsistent in their usage. The Delhi High Court examined trade dress elements which included color schemes during its review of Colgate Palmolive v. Anchor Health and Beauty Care through toothpaste packaging analysis. The court established protection for visual elements which included colors when those elements obtained market recognition through their established distinctiveness. The judgement provided useful information, but it failed to create an explicit system which would enable independent colour claims to be handled.

Why Does Ambiguity Persist?

One such aspect is the doctrine of functionality, which is rightly applied by the courts so as to avoid monopolization of colors when the colors serve a functional role. Imagine that you could get a trademark on red color for your traffic stoppers and green color for your environmental products. This means that you would end up having a monopoly on visual color resources, something which your competitors need. The Indian courts sometimes tend to exaggerate, applying the doctrine of functionality even where there was no need, conveniently escaping from the task of determining secondary meaning. 

Another issue is that of proof. Secondary meaning is proved only through the help of surveys, sales data, advertising expenditure data, and expert witnesses. This is a complete package. At times, the Indian courts have asked for such evidence without making it clear as to what quantum of proof would be enough.

What Needs to Change

The Trade Marks Registry requires better examination standards for evaluating colour mark applications. The current process for evaluating colour trademark applications allows examiners to establish different requirements for applicants based on their respective divisions. The implementation of a structured checklist which includes functionality evidence of use market surveys and specific shade claims through Pantone references would establish essential predictability. 

Courts need a major decision which directly establishes standalone colour marks just as the Louboutin case resolved the issue in Western courts. The past twenty years of Indian IP law development shows Indian courts can resolve complex trademark disputes. A high court decision or Supreme Court judgment which establishes the doctrinal standard for colour distinctiveness would create groundbreaking changes. 

Brands themselves need to take more active steps. Many companies create extensive advertising campaigns for a specific colour yet they do not submit registration applications or compile the necessary evidence for future legal disputes. Businesses face difficulties when copycats enter the market because they need to prove their brand identity through secondary meaning which takes longer to establish.

Conclusion

Consumers first perceive products through their color selection. The brain uses color information as its primary method to identify products before people read names or see logos. Indian trademark law acknowledges this importance in theory but falls short in practice. 

The existing gap needs better legal definitions, judicial decision patterns, and business education to achieve its resolution. The implementation of stronger color trademark protections will help India achieve international standards while increasing brand value in today's highly competitive business environment.

Author: Bhumija Mishra in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. Trade Marks Act, 1999 (India)

2. Colgate Palmolive Company vs. Anchor Health and Beauty Care Pvt. Ltd. (Delhi High Court)

3. Christian Louboutin S.A. vs. Yves Saint Laurent America Inc. (U.S. Court of Appeals, Second Circuit, 2012)

4. WIPO – Report on Non-Traditional Trademarks

5. McCarthy on Trademarks and Unfair Competition

6. UK case: Cadbury Ltd vs. Nestlé SA (2013)

7. WIPO publications on non-traditional trademarks

8. Manual of Trade Marks Practice and Procedure (IP India)