TRADEMARK | ECJ on colour position trademark: another application falls short

On 11 September 2024, the European Court of Justice (ECJ) issued its judgment in joined cases T‑361/23 to T‑364/23 (Väderstad v. EUIPO) in relation to the application of four position trademarks, each consisting of the colours red, black and yellow applied to various types of agricultural machines. The ECJ upheld the EUIPO’s decision to refuse the application for lack of distinctiveness under Article 7(1)(b) of Regulation (EU) 2017/1001 of 14 June 2017. In particular, the ECJ reiterated that the distinctiveness of a trademark relates to its ability to identify the commercial origin of the goods and to distinguish them from those of other companies: only a trademark that is capable of fulfilling this function can be registered. In this case, the ECJ found that the combination of the colours red, yellow and black is a simple variant of the colour combinations already used in the agricultural sector, typically for functional and safety purposes, and that even the perception of the relevant public is not sufficient to overcome the inherent lack of distinctiveness of the trademarks applied for. The ECJ thus concluded that the trademarks in dispute lacked distinctive elements capable of clearly distinguishing Väderstad’s products from those of other companies in the sector.

Newsletter n. 100 – October 2024