Colour trademarks in China as part of the non-traditional trademarks

A colour trademark is a trademark that consists of one or more colours, without any figurative limitation (contour). In practice this means that colours are intertwined with a brand in such a way that they become an indispensable part of the brand image.

As with all forms of trademark, the colour trademark must also be distinctive for the goods and services claimed. However, due to the large number of colours used in advertising, this is usually not the case. Trademark owners are advised to seek protection for unique colour combinations as early as possible.

An abstract colour as such can fulfil the function of a brand, namely, to distinguish the goods or services of one company from those of other companies. This means that a colour can generally be entered as a trademark in the trademark register.

A well-known example in Europe is the Deutsche Telekom colour RAL-4010 (magenta), register number 39552630.2. A DPMA trademark search shows that the Telekom magenta was entered in very different ways, including red areas. Not just the exact Tele magenta (RAL 4010), but a whole range between purple, pink and red. There are no rules or judgments about how much Delta E a permissible colour must deviate from a colour mark.

In China, a colour combination brand was first accepted in 2001. Colour brands also fall under the umbrella term of non-traditional brands in China. This also includes sound marks and 3D marks. Under Chinese trademark law, these non-traditional trademarks can be registered if they are able to distinguish one's own goods or services from those of others. So there is consonance with the European system.

A. Lack of distinctive character

In China it is generally not easy to successfully register a colour combination mark. A colour combination symbol is usually rejected.

When colour combinations relating to a certain type of goods, or services, or certain elements of them, are already widespread, it is difficult to determine a particular meaning. On the other hand, if colours are not yet widely used in a particular market for certain goods or services, or if the applicant's use of a particular colour combination is unusual or laborious, it is more likely that one can speak of distinctive character.

In general, the acquired distinctiveness is best demonstrated by high volume of advertising with the colour combination brand, as well as in consumer surveys that show that a high level of relevant consumers associates that particular colour combination with the applicant in the context of a particular good or service.

B. Single-color trademarks

Article 8 of the Trademark Law of the People's Republic of China provides that a “colour combination” can be registered for registration as a trademark, which excludes the registration of a single colour as a trademark. The decision of the Higher People's Court in Beijing on an appeal against the review of Louboutin Red Shoe Soles in 2018 pointed to a mistake made by the Court of First Instance and the Trademark Review and Adjudication Board (now CNIPA). We refer accordingly to ours article related to the Louboutin case. As a result of the decision, a group of legal scholars and practitioners believe that the appeal court's decision indicated that a single colour with precise location is not prohibited for registration in China. Others interpreted the judgment to mean that it does not necessarily mean that the signature colour mark can be registered in China, but that the court merely instructed the CNIPA to correct the error regarding the examination. It therefore remains to be seen in which direction the case law will develop. Now, we would therefore advise against registering a single-color trademark.

C. Colour combination trademarks

How difficult it actually is to register a colour combination trademark in China can be seen extremely well using the example of the battery manufacturer Duracell. Duracell's colour combination trademark was initially rejected in 2001 due to its lack of distinctiveness. However, because of the rejection review, the trademark was accepted. It was justified by the fact that the relevant colour combination had become a distinguishing feature through use and advertising over a longer period.

In the following I would like to go into the exact background of this registration. Duracell batteries are available in copper and black colours in a ratio of 1: 2 and use the "POWERCELL" marking. The main goal of the trademark owner was to obtain successful judgments against unauthorized battery manufacturers who used the colour shade copper and black in a ratio of 1: 2 without having to consider the word mark used on the batteries. It is therefore assumed that the word mark "DURACELL" and the colour combination trademark are two different trademarks and therefore two separate claims can be made based on the two trademarks (for the example of the Deutsche Telekom colour trademark mentioned at the beginning, it is also a word / figurative trademark “T” and a colour trademark “Magenta”, from which two different claims can be derived).

A precedent judgment in this regard is the "Super ROYAL" judgment of the Guangdong Supreme People's Court. The lawsuit affected the batteries, which use the Super ROYAL word mark (as well as the copper and black hues). The word mark "Super ROYAL" is completely different from the word mark "DURACELL". Accordingly, the verdict in favour of Duracell was only passed on the basis that the defendant's batteries used the shade of copper and black, which was identical or substantially like Duracell's colour combination trademark.

Although the court did not comment on the claim to infringement of the colour combination trademark, as is unfortunately not the case in China either, a predominant part of the teaching and practitioners concluded that through long-term use and advertising, the colour combination mark has become a characteristic symbol for Duracell Batteries had become and had acquired a strong distinctive character and reputation. The colour combination is known to general consumers. Use by "Super ROYAL" is misleading to consumers as to the source of the batteries and would lead consumers to believe that the batteries in question are linked to Duracell.

In this case, the court also followed Duracell's argument that the use of the colour combination symbol constitutes a violation of competition law, i.e., unfair competition. The trademark law did not provide sufficient remedy to stop the activities of "Super ROYAL".

D. Challenges in enforcing trademark rights from colour combination trademarks

Applications and publications of colour combination trademarks often show procedural deficiencies. The most common reason is the inadequate publication of the exact use of the colour combination mark. Although the application must state how the colour combination trademark is used, this information is not included in the trademark registration certificate, nor is it stated in the trademark publication. This fundamental defect makes it difficult to enforce the colour combination trademark.

In the Duracell case, the defendant asserted that they could not determine that the trademark in question was a colour combination trademark and the scope of protection of the colour combination trademark for consumers. Super ROYAL stated they had no subjective intent to violate the colour combination trademark.

This was then one of the reasons why the damage compensation granted in this case was not high.

It is therefore to be hoped that there will be improvements in the future in terms of labelling, more precisely how the colour combination symbol is used precisely. This is required by the CNIPA. The rights of the trademark owners as well as the interests of the public must be better protected in this regard. The easiest way would be to mark it accordingly in the context of the publication and registration certificate.


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