Abstract
The increasing awareness of colour trademark brings out an inherent contradiction between the objectives of trademark legislation and the requirements of competition and creativity in the fashion industry. While it may become distinctive through sustained use, the use of colours as a trademark can also hinder the ability of competing parties to use a basic ingredient in creating aesthetics. This paper examines the issue in the light of a comparative study of the colour trademark systems in India, the US and the EU. It is argued that the established concepts of distinctiveness, secondary meaning, functionality and color limitation have been developed in order to address the contradiction arising out of the dual nature of use of a trademark as a source indicator as well as an element of aesthetics for the industry as a whole. It created the problem of aesthetic monopoly. For the purpose of solving this problem, this paper offers the ‘Aesthetic Necessity Test’, which consists of four steps, namely: (i) Whether there is any secondary meaning of the color; (ii) Whether the color fulfills an important aesthetic role; (iii) Whether there will be any significant hindrance for future competitive freedom through exclusivity; and (iv) Whether trademark protection can be made as narrow as possible to keep the balance between trademark and source identification interests without hurting competitive freedom. This test has been applied to the cases of the red sole case of Christian Louboutin, the purple of Cadbury and the pink of Owens-Corning.
CHAPTER I:INTRODUCTION
1.1 Background of the Study
Intellectual property law aims to fulfill the seemingly contradictorily goals of promoting progress in art and science and ensuring its broad accessibility to all members of the public. Intellectual property as a concept covers a wide range of objects; however, trademarks differ from copyrights and patents in that it does not recognize innovations’ value in themselves. Trademark law’s primary purpose is to promote commerce by ensuring that goods and service originate from the stated manufacturers or suppliers, protecting both consumers and sellers. Traditionally, trademarks have been considered signs, including words, logos, labels, or other elements used to distinguish one company from another. Sounds, shapes, scents , motion marks, holograms, and even colors are now recognized as valid trademarks in the modern economy.
The introduction of color trademarks is indeed one of the most contentious issues in trademark law today. Color as a marketing tool and its ability to convey luxury, prestige, exclusivity, and even serve as a design feature itself has become more desirable in the modern fashion-centric world, where the value of the image often outweighs the functionality of the product. As a result, companies are trying to secure trademark protection for the color that is used for their products, as it is an essential element of brand recognition. The most famous examples include the red lacquer on the sole of Christian louboutin’s shoes, robin’s egg blue associated with tiffany & co jewelry, and hermes iconic orange color, used for their bag packaging.
International significance of color trademarks became evident after the ruling of the U.S. Supreme Court in Qualitex Co. v. Jacobson Products Co., Inc., in which the Supreme Court ruled that color is capable of performing trademark function when it develops secondary meaning and acts as an indicator of the source of goods.The U.S. Supreme Court overturned the presumption that colors cannot perform trademark function at all and recognized that color, under some conditions, communicates origin of goods as well as words and symbols do.
Similarly, the international intellectual property laws have also taken a liberal approach to the scope of trademark matter. Under article 15(1) of the agreement on trade-related aspects of intellectual property rights (TRIPS), any sign that is able to distinguish the goods or services of one business from those of another could be considered a trademark. Though colours have not been specifically mentioned in TRIPS, this wide definition has allowed member countries to cover non-traditional trademarks, such as color marks . The European Union and the US have followed the same approach but with stringent conditions for distinctiveness, functionality, and representation.
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