China: Colour-fool? Do not miss the rise of colour-combination marks in China

China has allowed the registration of colour-combination marks since 2001, but the treatment of such marks is still shrouded by uncertainty, skepticism and sometimes comic confusion to brand owners and even trade mark practitioners.

Many marketing studies have shown that consumers recognise colour and shapes better than plain text, and rely on these quick impressions to make purchases. This behavior is even more prevalent in the case of foreign brands which Asian consumers may often find hard to pronounce but who can instantly recognize the "golden arches" or coloured stripes synonymous with certain brands. This gap in protection is frequently exploited by counterfeit products which copy the colour and shape of the product packaging, but not the exact text of the registered mark, thereby tapping into consumer recognition and loyalty without actually infringing any trade marks.

China receives about 7 million new trade mark applications a year, meaning that in the 5 minutes you take to finish reading this article, another 26 new applications could have been filed. Currently, China has about 12 million "live" marks on the register, and in such a crowded space, it is hardly surprising that a large number of the applications filed meet with a citation of a prior mark.

Given the commercial and practical reasons above, brand owners eager to distinguish themselves in the marketplace and on the register may start turning to non-traditional marks such as colour-combination marks to differentiate their brand.

For example;

  Applied-for Mark Cited Mark
Trade Mark Color BNW
Class 6 6
Applicant Roxtec AB Zhejiang Fuzheng Machinery Co., Ltd
App. No 11915217 5106971
App. Date 19 Dec 2012 9 Jan 2006
Validity Period 14 Jan 2018 to 13 Jan 2028 7 May 2009 to 6 May 2019

In the first two instances, the China Trade Marks Office ("TMO"), and on appeal, the China Trade Marks Review & Adjudication Board ("TRAB"), both held that the applied-for mark  Coloris similar to the cited mark BNW.

The applicant was dissatisfied with the decision and appealed further to the Intellectual Property Court of Beijing. This time, the applicant was successful and the Beijing Intellectual Property Court held that although both marks were represented as two adjacent rectangles of colours / shades, it was wrong for the TRAB to compare a colour-combination mark with a device mark, and conclude that they are similar.

However, the TRAB was dissatisfied with the judgement and appealed to the Supreme Court of the People's Republic of China, to seek clarification of the correct comparison to be made. The Supreme Court of the People's Republic of China affirmed the judgement of the Beijing Intellectual Property Court, and allowed the applied-for Colorto proceed to registration.

Analysis and Opinion

To understand how the unusual situation arose, we examine the origins of the relevant provision of the Trade Marks Law of the People's Republic of China as follows:

Article 8 of the Trade Marks Law 2001

An application may be made to register as a trade mark, any visible mark, including any word, device, letter, numeral, three-dimension symbol or colour combination, or any combination of the foregoing elements, that can distinguish the commodities of a natural person, legal person or other organisation from those of others.

Article 8 of the Trade Marks Law 2013

An application may be made to register as a trade mark, any mark, including any word, device, letter, numeral, three-dimensional symbol, colour combination or sound, or any combination of the foregoing elements, that can identify and distinguish the commodities of a natural person, legal person, or other organisation from those of others.

The revision to the Trade Marks Law in 2013 deleted the requirement of "visible mark" and added the eligibility of sound marks, but the eligibility of colour-combination marks was not changed. How then, did the confusion arise?

In conjunction with the revision of the Trade Marks Law, revised Trade Marks Regulations were promulgated and a new set of official application forms were introduced. In these secondary materials, the old Chinese term "指定颜色商标" (which translates literally to "specific-colour-designated mark") was replaced by the new term "颜色组合商标" (which translates literally to "colour-combination mark"). The previous practice of checking the box "指定颜色商标" when claiming colour as an element of the mark was no longer necessary or even possible since the field had been replaced by "颜色组合商标". As a result, much confusion arose as to what exactly these terms referred to, the correct examination of these marks, and the scope of protection granted under such marks.

What is a "specific-colour-designated mark"?

It is a trade mark in a specific colour and shape. It may be represented in only one colour or several colours, and by its nature tends to be a device mark. The distinctive part of the trade mark is both the colour and the shape of the device. A specific-colour—designated mark will not be refused even if it consists of only one colour.

What is a "colour-combination mark"?

It is a trade mark consisting of a combination of two or more colours without any determinate shape. The distinctive part is the colour combination. A colour-combination mark which consists of only one colour will be refused on the basis that the law considers such marks as lacking distinctiveness and does not provide for their registration.

In this case, the cited mark is a specific-colour-designated mark, with the colours applied over the device of two adjacent rectangles. The applied-for mark is a colour-combination mark consisting of the colours blue and black, which for convenience or for lack of a better way to represent the swatch of colours, happened to be represented in the form of two adjacent rectangles. The nature and distinctive parts of these marks are different.

The current level of appreciation of this difference is still low among junior trade mark examiners and practitioners, but as more brand owners seek protection for colour-combination marks, we hope to see some clarity. Small improvements in the way the marks are described in the official application forms, the publication gazette notices, and the registration certificates should prove helpful also.

Hopefully, as the confusion subsides, brand owners will be more inclined to take advantage of the Trade Marks Law and seek protection for colour-combination marks. After all, there are only so many colour-combinations available, and given the size of the China market and the range of products jostling for attention, it is best to act early and not be left being a colour-fool.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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