Libertel Groep BV v Benelux-Merkenbureau [2003] Case C-104/01

In relation to a product or service, a colour per se is capable of constituting a sign.

With regards what may constitute ‘sign’:

1. Colour sample does not suffice

   • I.e. as colour fades over time, and is thus not durable

2. Verbal description of colour may suffice

   • But only if sufficiently clear and precise (this will not normally be case)

3. Designation from an international colour code may suffice

   • I.e. as this is sufficiently clear and durable

4. Use of colour sample, verbal description and designation from an international colour code in combination may suffice.

Colour marks usually not distinctive

• I.e. As colour is simply a property of a good, and thus consumers are not used to making assumptions as to origin on basis of a colour

Thus is practically impossible for a colour to be distinctive without prior use.

Additionally, is public interest in keeping use of colours free for other traders.

• Thus less likely that colour can be registered for large group of goods than for a specific good.