Libertel Case: The Heidelberger Bauchemie Gmbh And KWS Saat

Two other cases, the Heidelberger Bauchemie GmbH and KWS Saat , pertaining to color trade marks registration were brought to the ECJ after the Libertel case. In Heidelberger case, the issue focused was whether colors or combinations of colors formulated in the abstract and contourless are qualified as a trademark and satisfied Article 2 of the TMD .The applicant wanted to register blue and yellow color as a trade mark in Germany to distinguish certain goods and services in the building industry by producing a mark on a rectangular paper sheet with the top half blue and the bottom half yellow with a description that it is the company corporate colors and used in ‘every conceivable form, in particular on packaging and labels’. Specifications …show more content…
For the application to be accepted, it was decided that a trade mark consisting of two separate underlined colours must be graphically represented by arranging the colors in a particular way. The court is also in viewed that for trade mark registration only a sign can be represented by the colors per se or combinations of those colours provided they are systematically arranged in a predetermined and uniform way. In other words, applications for registration should provide a sample of the colors arranged in a systemic and predetermined way with a description using a globally recognized identification code. The Heidelberger case became one of the guidelines criteria for the registration of future colour trade marks in the …show more content…
In this case, a multinational telecommunications company known, as 'Orange' was successful in registering in Spain, the international trade mark registration no. 908,137 portraying by a plain orange square. But it’s competitor, Jazz Telecom, brought it to the Administrative Court and was successful to reverse the decision on the ground of lack of distinctiveness. The appeal decision was later overturned by the Supreme Court with the reasoning that the strict interpretation for registering colour marks per se was applicable to marks consisting of a colour shaped by predictable, insignificant or elemental geometric figures, such as the orange square mark. Furthermore according to the Court, it is the colour itself and not the square, which is a negligible feature that was considered as the main element in a global assessment of the mark. In situations that the colour itself was not eligible for trade mark registration, then the shaped colour trade mark will be no different from a colour per se trade