Many businesses forget: trademarks are not just about words and symbols

Today, businesses no longer need to be reminded that when they have a business idea, the first thing they should do before taking it out into the world is to register the trademark – the earlier the better. However, it is forgotten that trademarks are not just about words and symbols. Colours, sounds, even movements can nowadays be as much trademarks as traditional logos or names – they form our subconscious links to the origin and quality of goods.

On the other hand, the question may naturally arise – is it really possible to prohibit third parties from using, for example, “your” colour in business? When is red more than just red and green and white more than just a combination of colours? And most importantly, what does this mean for businesses and consumers?

It’s not just logos, words and symbols that can be registered

Trademarks can indeed come in many different forms – spatial, sound, motion, colour, etc. One of the main conditions for registration is the ability of the mark to distinguish the goods and services of one business from those of another.

There are cases where one business tries to imitate the distinctive features of another, but not through its name or logo. In this way, imitation can be difficult to detect, as it takes the form of non-obvious and probably pre-planned actions.

For example, a competitor’s marketing communication uses colour motifs, design solutions, shapes, perhaps even sounds, which the consumer unknowingly associates with the other brand’s goods and services and their qualitative characteristics. It can be difficult to stop such actions by a competitor, especially without adequate protection in advance.

Orange and white for Omniva’s brand

In Lithuania, it is still rare for a business to register its trademark as a colour or combination of colours. By obtaining such a registration, a business could, in principle, prohibit others from using the protected (or similar) colour in their commercial activities.

Registering such trademarks is really difficult, as the statistics show. Today, there are only three successfully registered colour marks in the trademark database of the Republic of Lithuania, including the green and white combination of Zalgiris Kaunas. A number of businesses have tried to gain a monopoly over a particular colour, but a large number of them have failed.

However, last week, more than a year after the filing date of the application, the Appeals Division of the State Patent Bureau finally upheld the appeal of AS EESTI POST, operating in Lithuania through its subsidiary UAB Omniva LT, and agreed to register the combination of orange and white. The company succeeded in registering another colour mark, the colour orange itself, separately from the orange and white combination.

The marks are registered for goods such as metal parcel boxes, post office boxes, as well as for postal, courier and related services. It will therefore be much more difficult to see post offices in Lithuania “coloured” in orange or orange and white that are not related to Omniva.

Ordinarily regarded as having no distinctive character

It is the practice of the courts that colours, by their very nature, are less likely to provide precise information. This is all the more so because their attractiveness makes them a common and widespread feature in the advertising and marketing of goods and services. Therefore, except in exceptional circumstances, colours are normally considered to be devoid of distinctive character. It is extremely rare that when you see a particular colour in your mind’s eye you immediately associate it with a particular commercial entity.

However, it is recognised that colours can become distinctive when they are used intensively and businesses can demonstrate that consumers associate the colour with their goods and services. One of the most prominent internationally known examples is Milka chocolate. When you see the light purple colour in the chocolate section, you probably don’t feel the need to read the name to know what it is. In Lithuania, Omniva has now demonstrated such recognition.

More registrations of colour and other rarer trademarks can be expected in Lithuania in the future, as successful examples are slowly emerging. So for businesses that want to stand out from their competitors, it is worth taking a broader look at trademark protection options. It may be that a distinctive colour, a loud sound or even a video animation will eventually become one of the cornerstones of success, helping to build loyalty and market appeal.