Section 10 of the Act states that a trademark can be limited to a particular color or combinations of colors. However, such limitation as to color will only be allowed on determining the distinctive character of the mark. However, if no color has been specifically claimed, then it shall be deemed to be registered for all colors.
How to check distinctiveness of the color mark?
If the mark being applied for is for a combination of colors and that is the distinctive feature of the mark, then this should be expressly mentioned at the time of filing. However, in cases of when a particular color is claimed, there applicant will be required to submit evidence to show that the said color combination or color that has been claimed is solely associated with the Applicant or exclusively designates their goods.
Given this requirement, it is advisable to file such marks claiming usage from a particular date in order to be able to substantiate that the color or combination of colors is in fact associated with the Applicant. However, if the color that is claimed is common to trade then it might be difficult to claim exclusivity over the color. An interesting example (provided by the Trademark Office) – GREEN as the trademark for a beer may be distinctive, however when the color green is claimed for packaging of beer bottles, it would be non-distinctive.
A color can only be trademarked if the company using it has used it so consistently and so aggressively and for so long (as in, many years) that the color has become firmly associated with that company in the minds of consumers. In the law this is called “secondary meaning” — that that color signifies that company to consumers looking at it. You cannot set out to trademark a color at the beginning, the way you can with a name or a logo. A color mark has to be earned over decades, and then policed. The two best examples are the famous robin’s egg blue color trademarked by Tiffany and the deep brown color trademarked by United Parcel Service. Each of those in its own way has achieved the kind of secondary meaning that the law requires.
Dependence
The correct answer will be “It depends”. In some countries it is possible to register the color as a trademark (the US, the UK, in Europe, etc.) in others no (usually in Asia, Africa and the Middle East), no matter how heavily you use it there. Even in the countries where it is possible, this is extremely difficult. Since, if you have trademarked a color, this will mean that others will not be able to use on the same products. You products or services must be associated with the color by the majority of customers. This is really challenging to achieve and the registration is very expensive as well (since you will have to prove that customers link the color with your products). So if you wish to register the color, you will have to make your clients to recognize your company immediately, when seeing the color in association with your product/service. Brown color + courier services = UPS.
Distinctiveness of the color mark
If the mark being applied for is for a combination of colors and that is the distinctive feature of the mark, then this should be expressly mentioned at the time of filing. However, in cases of when a particular color is claimed, there applicant will be required to submit evidence to show that the said color combination or color that has been claimed is solely associated with the Applicant or exclusively designates their goods.
