Trademark is one of the most common application under Intellectual property right. Registration of trademark was first established in the year 1940. Initially, India borrowed the British Trademark Act of 1938, but after independence India modeled its own trademark act “The Trade & Merchandise Mark Act, 1958”, presently operating as the Trademark act of 1999. The Trademarks Act, 1999, defines well-known trademark as, “a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.” In simple words, a trademark can be a phrase, word, design or sign capable of distinguishing the products or services of one enterprise from those of other enterprises. Trade mark registry is regulated by law to allow and register any mark as a trademark which is deceptively similar to any of the well-known trademark.
A color trademark is different from other trademarks. Researcher have indicated that over 80% of visual information is related to color. In the case of color trademark, the color of the product becomes the brand. For example, when you see noodles in a yellow wrapper, you know it’s Maggie or Mattel, Barbie’s parent company, has trademark a shade of pink known as ‘Barbie Pink’ for use in many categories, from bubble bath to cereal. However, Barbie Pink is protected by trademark only for certain listed goods. Other companies can still use the color pink for other products.
According to the Trademark Act of 1999, to register a trademark in India two conditions need to be fulfilled:
• The color or combination of color used is distinguishing the product from other similar products available in the market.
• The color or combination of color is exclusively associated with the goods of business willing to register the trade mark.
In India, it is permissible by the law to register a single color or combination of colors for trademark. A combination of color is registrable if they are unique and distinctive. In case of a figurative mark, as few as two colors could be accepted. But colors which are simply used for the packaging of the products are harder to be trademarked. Registration of single color as trademark is done only in very peculiar cases. The applicant has to submit evidence to corroborate the claim that the said color is exclusively designated with the applicant’s goods. Though the procedure for registration of single as well as combination of colors trademark is same, registration of single color trademark is relatively hard because majority of trademark applications for single color trademark are prone to objection by the Trademark Examiner, as they inherently lack the capability of being distinguished and also create a monopoly over a color. Earlier in the US, a single color could not be registered as a trademark. However, after the passing of The Lanham act of 1946, combination of colors as well as a single color could be registered as a trademark subject to certain conditions:
• The mark shouldn’t be functional and
• The color that the enterprise wishes to register has already acquired meaning in connection with the goods or services of the applicant.
A very recent case related to color trademark registration is the controversial case of Paytm vs. PayPal. The brawl over the trademark violation had begun on 18th November 2016 when PayPal Inc. had filed a petition against Paytm stating that the logo used by Paytm is similar to theirs. Both the entities deal with the same type of business activity i.e. online payments and transactions and the logos of both companies has the same color combination, so it was very easy to get mystified by the two logos. Due to increase in competition with emergence of numerous brand name, it is necessary for the companies to do a trademark search before formation to avoid the violation of trademark registration rules. Trademark search is done by checking for likeness or resemblance of the name of the company or brand with those of the existing trademarks across the world that have been already applied or registered.