The Pantone Colour Institute has created a new colour called ‘Minion Yellow’ meant to show “hope, joy and optimism” inspired by the little yellow creatures featured in the “Despicable Me” movie franchise. Colours, identified by the allocated Pantone number, have formed some of the world’s most recognisable trade marks, for example the Coke red or the Christian Louboutin unique red soles of their shoes. If they are registered as a trade mark the trade mark owner will have the exclusive right to use that shade of colour in relation to the registered goods/services to the exclusion of others.
In South Africa, colours have only been registrable since 1995 and the Trade Marks Act of 1993 now defines a “mark” to mean “any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.”
It may come as a surprise that it is not easy to be granted a colour trade mark. In the matter before the Trade Mark Registrar of Trade Marks in 2004, Cadbury Ltd vs Beacon Sweets and Chocolates(Pty) Ltd, the Registrar ruled on a trade mark application consisting exclusively of colour. Cadbury had applied for the registration of the colour purple in respect of chocolate confectioneries and described the mark as consisting of the colour purple as shown in the representation attached to the application, which was a purple square block. The application was later amended by specifying the purple colour by its international Pantone code. However, the Registrar held that “unless a single colour is unusual in relation to the goods or services in respect of which it is proposed to use the mark, it is submitted that such a single colour is not inherently capable of distinguishing. Consumers are not accustomed to making an assumption about the origin of goods on the basis of the colour of the packaging in the absence of either a graphical or textural element, because a colour per se is not normally used as a means of identification in practice.” Essentially, if not distinct the colour will not constitute a registrable trade mark and the Registrar found the colour mark in this instance too vague to be identifiable as a mark.
It remains to be seen whether ‘Minion Yellow’ will be trade marked by Universal Studios and what the outcome will be if they attempt to do so.
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