China: Color Your Products Safely– Discussion On Trademark Protection Of Colors Combinations In China

Last Updated: 17 May 2016
Article by Tai Guo

Roughly speaking, the human eye can differentiate more than 6,000 different colors. Modern printing technology can provide around 8,000 types of colors for our daily use. A 24bit monitor can display 16,777,216 colors. In one word, we are living in a colorful world. So what about your products?

A product with colorful packaging or decoration will obviously cater to the natural human love of color. A design of colors will be considered as a valuable intangible asset for a product's brand. Brilliant businesspeople have been aware of it for a long time. However, how do you prevent your valuable colors from being "borrowed" by a competitor when selling products in China? More specifically, what action(s) should be taken place to protect your colors is a meaningful and challenging question that you should keep in mind when doing business in China, one of the biggest markets in the world.

A brief and straightforward answer would be to register the combination as a trademark. Given that the right owner will enjoy the exclusive right of use over the registered trademark in the P.R.C, any other third party cannot use it with authorization; therefore seeking trademark protection shall be the first and foremost option in China.

Below we will discuss in detail how to protect your product's color combinations in China.

How to apply

According to the Trademark Law of the PRC, the combination of two or more colors, which can distinguish the source of products, can be submitted for trademark registration (Article 8 of theTrademark Law). Apart from the regular documents which are required for a traditional trademark application, in order to file a trademark application for combinations of colors, the following tips should be borne in mind:

  1. In the application, the applicant shall clearly clarify that the application is for combinations of colors. Otherwise, it will not be examined as a combination of colors trademark. In practice, it will normally be recognized as a figurative trademark application.
  2. The applicant has to provide a clear sample of the concerned color combinations with particular chromatographic numbers.

Roadblock – Lack of Distinctive Features (Article 11.1(3) of the Trademark Law)

The main purpose of a trademark is to assist customers in distinguishing the sources of various kinds of similar products. Therefore, the distinctiveness will be seriously tested during the examination of each trademark application. Given that a combination of two or three different colors will usually be too simple to pass the required distinctiveness test, it is not that easy to register a combination of colors in China.

In Fluke Corporation vs. TRAB (2013), Fluke applied for no.8006090 "" trademark before the CTMO, but was refused by both the CTMO and TRAB due to a lack of distinctive features. In the administrative lawsuit, Beijing First Intermediate Court held that

"According to Article 11.1(3) of the Trademark Law of the PRC, a mark without distinctive features shall not be registered as a trademark. Since the main purpose of a trademark is to differentiate the sources of products from each other, any mark which cannot achieve this purpose shall be considered as lacking distinctive features. In the current case, the designated colors and method of combination are the normal design utilized in the electronic industry, and therefore cannot be recognized as trademark".

In a similar case, Information Card LLC. vs. TRAB (2012), the Appellant applied for no.5858687 "" trademark before the CTMO, and was also refused by both the CTMO and TRAB for the same reason. In the second instance administrative lawsuit, Beijing High Court held that

"The combination of blue and white spots is too simple to be a capable mark which can distinguish the sources of goods/services."

Breakthrough – Obtain Distinguishability through Use (Article 11.2 of the PRC Trademark Law)

According to the above, it seems to be impossible to apply for a combination of color trademark with simple colors. The truth is that if the applicant can prove that the concerned mark has acquired distinctiveness and become easily distinguishable through use, it is likely to obtain the CTMO's permission of registration.

In the Review of Refusal of No. "" Trademark Application, after reviewing the evidence of use provided by the Applicant, the Gillette Company, TRAB made the decision that their trademark application shall be approved. In contrast to the two cases discussed above, in this case the Applicant submitted ample evidence relating to the duration and method of use of this combination of colors on specific battery products, the advertising made for the corresponding battery products, sales scale of the products bearing applied mark, etc., which successfully persuaded the TRAB examiner into believing that the "" mark has obtained distinguishability through long-term use.

In the Review of Refusal of No.4496717 "" Trademark Application, TRAB also overruled the CTMO's decision on the refusal of trademark registration, and upheld the allegation made by Deere & Company as the Applicant that the "" combination of colors has been used on harvester by Deere for a long period of time in China, which has enjoyed quite a high reputation among relevant consumers, and therefore, it has acquired distinctiveness.

From the above precedents, it can be concluded that the evidence of long-term use of applied colors combination on designated products by specific method is crucial for an applicant to successfully register a combination of colors trademark in China. Such pieces of evidence include (a) sales invoices of particular goods bearing related to the combination of colors, (b) corresponding bills of sales, shipping bills, (c) advertising service contracts, corresponding payment documents, (d) promotional materials, such as brochures, yearbooks, advertisements (online and offline), (e) awards, etc..

Protect Scope of Color Combination Trademarks

Contrary to traditional trademarks, such as word trademarks and figurative trademarks, which can be recognized as trademark without adhering with designated goods, combination of color trademarks have to combine with particular products to be acknowledged as a trademark. We call it the "Method of Use". Otherwise, it can only be considered as several colors without any inherent meaning. Nevertheless, it does not mean that color combination trademarks only have a limited protection scope. On the contrary, in certain situations, a color combination trademark will provide better protection than a traditional trademark.

In Deere & Company vs. Jiu Fang Tai He International Heavy Industries (Qingdao) Corporation & Jiu Fang Tai He International Heavy Industries (Beijing) Co., Ltd. (2014), the Plaintiff was the right owner of the above discussed no.4496717 "" colors combination trademark. The designated goods included harvesters. The Method of Use was to use the color green on the body of the harvester and yellow on the wheel hubs, as depicted below:

The Defendants in this case used a similar combination of colors on their harvester by a similar method as seen below:

In the lawsuit, the Plaintiff alleged that Defendants' use of the combination of green and yellow colors had infringed its registered trademark right in China. Accordingly, both Beijing Second Intermediate Court (the first instance) and Beijing High Court (the second instance) held that the two Defendants infringed the Plaintiff's registered trademark right and granted compensation of CNY 450,000 to the Plaintiff against the Defendants.

In the second instance judgment, Beijing High Court stated that,

"during the application of the alleged trademark, Deere has clearly limited the method of use into 'green main body and yellow wheel hubs'. Relevant consumers always associate this method of use with Deere's agricultural machinery. ... Despite the Defendants labeling their own brand on the suspected infringing harvester, their use of an extremely similar color combination by a same/similar method in the same/similar goods will cause confusion as to the goods' origin among relevant consumers."

It is a classic example of how to use a trademark right to protect the overall appearance of physical products. It can hardly be protected if the trademark is a traditional figurative mark. The following case gives us a pretty good example.

In Fluke Corporation vs. Shenzhen Fu Tai Ke Apparatus Technology Co., Ltd (2014)., as discussed above, the Plaintiff failed to register the "" color combination trademark. Nevertheless, Fluke is the right owner of the registered "" figurative mark in China with registration number 9723048 over electronic test equipment. In the current case, Fluke alleged that the overall appearance of the Defendant's product which is listed below had infringed its registered figurative trademark right.

In the Judgement, the court denied all demands claimed by the Plaintiff and determined that the appearance of the Defendant's products did not infringe the Plaintiff's trademark right, mainly on the basis that the 2D figurative mark cannot prevent the use of a 3D overall appearance of a physical product.

In comparison with the Deere case, we can imagine that if Fluke had obtained a color combination trademark, the Court may have reached a completely different decision in this case.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions