Trademarks are not just about words and symbols

"Today, businesses no longer need to be reminded that when they have a business idea, it is advisable to register a trademark first, even before releasing it into the world - the sooner, the better. However, it is forgotten that trademarks are not just about words and symbols.

 

Colors, sounds, even movements can be equivalent trademarks today, like traditional logos or names - they form our subconscious associations with 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" color in business? When is red more than just red, and green and white - not just a combination of colors? And most importantly - what does this mean for business and consumers?

 

Trademarks can indeed be of the most diverse types - spatial, sound, motion, as well as color, etc.

 

One of the main conditions for their registration is the ability of the mark to distinguish the goods and services of one business from the goods and services of another.

 

There are cases when some companies try to imitate the distinctive features of others, but do not do so through the name or logo. In this way, imitation can be difficult to detect, since it manifests itself in non-obvious and, most likely, pre-planned actions.

 

For example, a competitor's marketing communication uses color motifs, certain design solutions, shapes, and maybe even sounds that are established in one company, which the consumer, without even realizing it, associates with the goods and services of another brand and their qualitative characteristics. Stopping such actions by a competitor can be difficult, especially if proper protection is not taken care of in advance.

 

In Lithuania, it is still rare for a business to register its trademark as a color or a combination of colors. Having obtained such a registration, a business could essentially prohibit others from using the protected (or similar) color in commercial activities.

 

It is really difficult to register such trademarks, as statistics show. Today, in the trademark database of the Republic of Lithuania, you will find only three successfully registered color marks, among which is the combination of green and white colors of Kaunas “Žalgiris”. More than one business has tried to gain a monopoly on a certain color, but a large part of them have failed.

 

However, a few days ago, the Appellate Division of the State Patent Bureau, more than a year after the application was filed, finally granted 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 colors. The company also managed to register another color mark – the color orange itself, separately from the orange and white combination.

 

The marks are registered for such goods as metal parcel boxes, parcel machines, as well as for marking postal, courier and related services. Therefore, it will be much more difficult to see parcel machines “painted” in orange or orange and white in Lithuania that are not related to “Omniva”.

 

Usually considered to be non-distinctive

 

Courts have traditionally held that colours, by their very nature, are not very capable of providing precise information. This is especially true given that they are commonly and widely used in the advertising and trade of goods and services due to their attractiveness. Therefore, except in exceptional circumstances, colours are usually considered to be non-distinctive. It is extremely rare that when you see a certain colour you will immediately associate it with a specific commercial entity.

 

However, it is recognised that colours can acquire distinctive character when they are used intensively, and businesses can prove that the consumer associates this colour with their goods and services. One of the most prominent examples known internationally is Milka chocolate. If you see a light purple colour in the chocolate section, you probably won’t feel the need to read the name to understand what kind of chocolate it is. In Lithuania, Omniva has now demonstrated such recognisability.

 

In the future, more registrations of colour and other rarer trademarks can be expected in Lithuania, as successful examples are gradually emerging. Therefore, businesses that want to stand out from their competitors should take a broader look at the possibilities of trademark protection.

 

It is possible that a distinctive color, a loud sound or even a video animation will eventually become one of the key success factors, helping to create loyalty and attractiveness in the market.

 

The author of the insight is Vilius Norvaišas, associate lawyer at the law firm “Ellex Valiūnas ir partneriai.””