Jessica Stretch provides guidance on protecting colour & shape trade marks
When asked to think of a famous trade mark, most people will cite a brand name or logo. In fact, trade marks can be registered for many aspects of a brand such as colour, shape, sound and smell. Legislation defines a trade mark as (i) a sign (ii) capable of being represented graphically and (iii) capable of distinguishing the goods or services of one undertaking from those of other undertakings (the Trade Marks Act 1994, s 1(1) and Directive (EC) 2008/95, Art 2).
The Court of Appeal has recently explored the meaning of “graphic representation” in the context of Cadbury’s application for the colour purple and JW Spear’s registration for the shape and colour of a Scrabble tile (Societe des Produits Nestle SA v Cadbury UK Ltd [2013] EWCA Civ 1174, [2013] All ER (D) 35 (Oct) and JW Spear & Son Ltd v Zynga Inc [2013] EWCA Civ 1175, [2013] All ER (D) 39 (Oct)). These cases highlight some common pitfalls to avoid when registering unconventional trade marks.
