Colour in trade mark law

The chapter begins by reflecting on the apparent stasis in UK trade mark law on the eve of EU harmonisation. It goes on to demonstrate that the approach taken by the judiciary and legislature to the registration of colour marks in the UK before 1994 was in fact more activist than might be supposed. The protection of colour and colour combination marks under EU law is then considered, showing how the CJEU has grappled with issues of graphic representation and distinctiveness against the particular problems posed by colour marks: e.g. paucity of colour terminology, colour depletion, functionality, and the fact that a colour can become saturated with numerous other meanings besides trade mark sense. Following a brief consideration of US law, the chapter reflects on the increasing hostility to colour marks within trade mark discourse, concluding that colour marks might safely be registered as the law of trade mark infringement and the law of unfair competition converge.