GlaxoSmithKline has failed in its attempt to protect the colour purple (Pantone 2587C), which is associated with its purple asthma inhalers. The ECJ has ruled that its mark for the colour purple lacked inherent distinctive character. Further, the Court has stated that colours are only inherently distinctive in “exceptional circumstances”.
The inhalers are commonly classified in the pharmaceutical sectors by their colour, which led to the rejection of the colour purple trade mark. The ECJ further noted that the relevant public will not necessarily associate GSK’s goods with its specific shade of purple as there are other inhalers in different shades of purple depending on the strength of the medical treatment.
The ECJ has also stated that it would not be in public interest to block other pharmaceutical companies from using the same colour for similar products. If GSK were successful in registering the colour purple mark, they could monopolise the market and prevent other companies using the colour in that particular shade on their products. As colours are limited, the Court is keen to prevent monopolisation and encourage healthy competition.
This has been a long battle for GSK, who has been trying since 2015 to register an EU colour trade mark on the shade of purple, which has ended unsuccessfully.
Purple seems to be popular. Before GSK’s attempt to secure the colour, Cadbury’s attempt to protect its shade of purple (Pantone 2685C) was challenged by Nestle and Cadbury were ultimately unsuccessful in obtaining protection. However, Mars Petcare UK have successfully registered purple (Pantone 248C) in the EU for cat food.
Colours are very difficult to protect if used in broad sense, but it is not impossible provided you can demonstrate acquired distinctiveness.
Colors, including abstract color combinations, are considered inherently distinctive only in "exceptional circumstances," the General Court noted in its ruling.