More than in any other jurisdiction, in India, colour and colour schemes play a crucial role in distinguishing a product or a service. This is primarily because although a large segment of the Indian population is not conversant with the English alphabet; many brands are usually in the Roman Script. Furthermore, there are 22 official languages in India and a person who might be highly literate in one language may not even recognize the script of another. Under these circumstances, products/services are often identified, inter alia, by their colour scheme.
Keeping in view the Indian scenario, it is thus important to protect consumers from being deceived as well as the traders from losses that they may incur because of the presence of like products/services in the market with a similar colour scheme. In this sense, the colour of the product or the colour of its packaging can be a more important factor for the brand owner than the brand under which the product is being sold. A brand owner therefore must be granted exclusive rights to use that colour as a trademark. Certain brands/products that are recognized by particular colour / colour scheme in the trade are:
- Parachute Coconut Oil is recognized by the dark blue of its bottle;
- Reliance Petrol Pumps have a colour scheme of green and blue;
- Nestle Chocolates has a particular shade of red whereas Cadbury Chocolates are recognized by the purple packaging;
- Washing Powder is recognized by the colour yellow in India whereas detergent powder is recognized by blue.
It is a myth that colour as a trademark is not registrable in India. In fact, the Indian judiciary in the Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd., has acknowledged colour as a part of trade dress and provided it protection. The Trademark Registry has addressed this issue in its Draft Manual for Trade Mark Practice and Procedure where it provides that subjective examination should be done for “colour” trademarks. The Manual further emphasizes on the fact that for a colour to be registrable as a trademark “The key issue will usually be whether the proprietor has used the mark distinctively to educate the public that the colour itself is a trade mark.” The distinctiveness of colours and the ability to differentiate between different shades of a colour have been the glitch, in question. The proprietor/brand owner can address this issue by providing:
- Significant number of declarations from traders and actual consumers stating brand recognition.
- The declarations should also be supported by wide publicity by the producer/ proprietor.
A good example of wide publicity is the publicity done for the colour ORANGE by Orange Communications Limited, a French multinational telecommunications corporation, for their telecommunication services.
A limitation to the eligibility of colour being registered as a trademark is that, it needs to attain "secondary meaning” to the colour in question, that is, it should help to identify and distinguish a particular brand, and thus indicate its source. This means that a colour will not qualify as a trademark unless consumers come to associate that colour with a particular manufacturer or source of goods (or services). In addition to that, a colour will not be granted registration under the Indian Trademarks Act if the colour is functional in nature. Under this ‘functionality doctrine’, if the colour of the product for which protection is sought is common or it affects the cost or the quality of the article, such that granting trademark protection to the colour would put competitors at a significant disadvantage then such colour is not entitled to trademark protection.
Corporate interest in product colour rights stems from the effect the colour has on the consumer’s perception and their identification of the product. Consumers identify a product with a particular colour (e.g. butter/margarine is identified by the colour yellow, butter being yellow) and if the product is made available in a different colour/ scheme, consumers might not find the same appealing enough and might not be induced to purchase the product.
To sum up, a colour trademark is registerable and enforceable in India, if it is capable of identifying the brand owner as the source of the product/service and if it distinguishes the products/services sold or manufactured by the owner from similar products/services of other manufacturers.