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Can a colour be registered as a trade mark?

ByCabinet Lazuli

What colour do you associate with your business? If the answer comes to you straight away, it probably comes to your customers too. The blue of a package, the yellow of a range of tools, the green of a shop sign: some shades end up identifying a product as surely as a logo. The question then follows, often when a business is preparing new packaging or discovers that a competitor has adopted its colour: can you reserve a colour for yourself by registering it as a trade mark?

In principle, yes. In practice, few colours pass examination, and a registration may be cancelled years later if it was poorly drafted. Here is what the law says, and how to protect your colour when a trade mark filing is not the right route.

The law accepts colour marks

Since the “Trade Mark Package” reform came into force on 15 December 2019, a trade mark no longer needs to be represented graphically. Article L. 711-1 of the French Intellectual Property Code only requires that the sign be capable of being represented on the register “in a manner which enables any person to determine precisely and clearly the subject matter of the protection”1. The European Union trade mark regulation even expressly lists colours among the signs capable of constituting a trade mark2.

A colour can therefore be filed on its own, without any outline or design. It must still be designated unambiguously. The Court of Justice ruled as early as 2003 that a mere sample on paper is not enough, whereas an internationally recognised identification code may suffice3. In practice, I always file a shade with its Pantone or RAL reference.

On its own, a colour is a poor indicator of the origin of goods and services

The real obstacle lies elsewhere. A trade mark must enable the public to recognise the origin of a product. Yet consumers are not in the habit of seeing a colour as the signature of a business: they see it first as an aesthetic choice, or as a sector code (green for natural products, red for special offers). A trade mark devoid of distinctive character cannot be validly registered4.

The Court of Justice adds a consideration specific to colours. The public can really distinguish only a small number of them, and a few registrations would be enough to exhaust the palette to the detriment of competitors. Account must therefore be taken of “the general interest in not unduly restricting the availability of colours”. The Court infers that a colour can be distinctive without prior use only in exceptional circumstances, particularly where the mark is claimed for a very restricted number of goods in a very specific market5.

In concrete terms, filing a colour on its own for a newly launched product almost always ends in refusal.

Two colours: the arrangement must be specified

Combining two or three colours does not solve the problem. In 2004, the Court required the application to include a systematic arrangement associating the colours in a predetermined and uniform way. The mere juxtaposition of two colours, without shape or contours, lacks the required precision6.

Red Bull learned this the hard way. Its two EU trade marks for the combination of blue and silver for energy drinks, registered in 2005 and 2011, were declared invalid. The description of the first indicated a ratio of approximately 50% for each colour; that of the second, colours applied in equal proportion and juxtaposed. In 2019, the Court of Justice confirmed that these wordings allowed numerous different combinations, without a predetermined and uniform arrangement7. A telling detail: the evidence of use filed by Red Bull itself showed its colours arranged in very different ways.

The drafting of the application therefore matters as much as the colour itself. A vague description produces a fragile right, which a competitor may have cancelled at the worst possible moment, for example in response to an infringement action.

It is therefore advisable to describe the arrangement as the colour actually appears on the market: horizontal or vertical stripes, proportions, position on the packaging. This consistency has a second benefit. An owner who has not made genuine use of its trade mark for five years is liable to revocation8. A mark registered in a form the business does not actually use exposes it to that risk, on top of the risk of invalidity.

Use can turn a colour into a trade mark

The door remains open. The last paragraph of Article L. 711-2 of the French Intellectual Property Code provides that distinctive character may be acquired through use9. A colour used for a long time, consistently and intensively, may end up identifying a business in the eyes of the public.

This still has to be proven, and the standard of proof is demanding: duration and intensity of use, market share, advertising investment, opinion surveys. For an EU trade mark, the difficulty multiplies. Acquired distinctiveness must be shown in all the Member States where the sign lacked it, and not merely in a substantial part of the territory10. That is why many colour marks are first built at national level.

A colour applied to part of a product

A colour may also be claimed at a specific position on the product. The best-known example remains the red sole of a Parisian shoemaker: in 2018, the Court of Justice held that a sign consisting of a colour applied to the sole of a shoe did not consist “exclusively” of the shape of the product, and therefore escaped that ground for refusal11. This ruling does not dispense with the need to show distinctive character. It merely shows that a position mark can be based on a colour.

A colour mark must not be used to extend a patent

The CeramTec case shows another limit on colour mark filings. This manufacturer of ceramic components for hip prostheses held a patent on a material whose pink shade came from chromium oxide added in a precise proportion. The patent expired on 5 August 2011. Eighteen days later, CeramTec filed three EU trade marks for this pink (Pantone 677C): the colour alone, and a pink ball as a figurative mark and as a three-dimensional mark. The courts declared all three marks invalid on the ground of bad faith. The colour was not an arbitrary choice intended to brand the products, but the necessary consequence of the composition of the patented material. By registering it, CeramTec was seeking to extend its monopoly and keep its competitors out of the market, rather than to indicate the origin of its products12.

It makes no difference that studies later showed that chromium oxide had no effect on the strength of the material: bad faith is assessed at the filing date, and CeramTec then believed in that technical effect13.

Other tools exist to protect a colour

When a colour mark is out of reach, the colour is not left defenceless.

  • Figurative mark in colour. Register the logo or the shape of the product, colours included. Protection covers the whole, but the colour will weigh in the assessment of the likelihood of confusion
  • Designs. The appearance of a product is characterised in particular by its colours, and packaging is expressly covered. New packaging with individual character can thus be protected for up to 25 years14
  • Unfair competition and free-riding. Copying your get-up (colour, layout, visual identity) may be sanctioned if it creates a likelihood of confusion or allows a competitor to benefit from your investment free of charge. The action requires proof of fault, which makes it less certain than an infringement action

What I recommend before filing

  • Check that the colour is not a sector code: a shade dictated by custom or by the function of the product has no chance of being registered
  • Identify the shade by an international reference (Pantone, RAL) and, for a combination, describe the arrangement and proportions precisely
  • Start gathering evidence of use now (dated visuals, sales figures, advertising budgets, press coverage), even if filing is not imminent
  • File the logo and the packaging in colour in parallel, and consider a design registration for the packaging
  • Start with a French trade mark when the colour’s reputation remains national

A colour is rarely protected on its own. It is better protected when it forms part of a carefully chosen portfolio of rights, and when its use has been documented from the outset.

LAZULI assists businesses that have made, or wish to make, a colour, packaging or get-up part of their identity: assessing the feasibility of a colour mark, drafting the application, building the evidence-of-use file, filing designs, and taking action against copycats.

Jérémie LEROY-RINGUET, October 2026

  1. Article L. 711-1 of the French Intellectual Property Code (CPI), as amended by Ordinance No. 2019-1169 of 13 November 2019 ↩︎
  2. Article 4 of Regulation (EU) 2017/1001 of 14 June 2017 on the European Union trade mark ↩︎
  3. ECJ, 6 May 2003, Libertel, C-104/01, EU:C:2003:244, operative part, point 1 ↩︎
  4. Article L. 711-2(2) CPI; Article 7(1)(b) of Regulation (EU) 2017/1001 ↩︎
  5. ECJ, 6 May 2003, Libertel, C-104/01, paragraphs 54 to 56 and 66 ↩︎
  6. ECJ, 24 June 2004, Heidelberger Bauchemie, C-49/02, EU:C:2004:384, paragraphs 33 and 34 ↩︎
  7. CJEU, 29 July 2019, Red Bull v EUIPO, C-124/18 P, paragraphs 38 to 47, upholding General Court, 30 November 2017, T-101/15 and T-102/15, EU:T:2017:852 ↩︎
  8. Article L. 714-5 CPI ↩︎
  9. Article L. 711-2, last paragraph, CPI; Article 7(3) of Regulation (EU) 2017/1001 ↩︎
  10. CJEU, 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C-84/17 P, C-85/17 P and C-95/17 P (shape of a chocolate bar) ↩︎
  11. CJEU, Grand Chamber, 12 June 2018, Christian Louboutin v Van Haren Schoenen, C-163/16 ↩︎
  12. Paris Court of Appeal, Division 5, Chamber 2, 25 June 2021, RG No. 18/15306; CJEU, 19 June 2025, CeramTec, C-17/24 ↩︎
  13. French Supreme Court (Cass. com.), 7 January 2026, No. 21-23.458, paragraphs 13 and 16 to 23, dismissing the appeal against Paris Court of Appeal, 25 June 2021; see also Cass. com., 10 January 2024, No. 21-23.458 (preliminary reference) ↩︎
  14. Articles L. 511-1, L. 511-2 and L. 513-1 CPI ↩︎

FAQ – Colour Trade Marks

Yes. Since 15 December 2019, graphic representation is no longer required. The colour must, however, be identified unambiguously, preferably by an international code (Pantone, RAL).

The public first sees a colour as an aesthetic choice or an industry convention. Without prior use, distinctive character is only accepted in exceptional circumstances.

By describing a systematic, predetermined and uniform arrangement (layout, proportions, position on the product). A mere juxtaposition is not enough, as the cancellation of Red Bull’s blue and silver marks showed.

Yes, if long, consistent and intensive use has given it distinctive character. For an EU trade mark, this must be proven in every Member State where the sign lacked it.

Yes. An imprecise description exposes it to invalidity, often raised in defence to an infringement action. A mark not used in the registered form is also liable to revocation after five years.

Yes, as a position mark. The CJEU accepted this in 2018 for a shoe sole, without exempting the owner from proving distinctive character.

The risk is high where the colour results from the patented technical composition. In the CeramTec case, marks filed for that pink shortly after the patent expired were cancelled for bad faith.

Through a figurative mark filed in colour, a design right for the packaging or product (up to 25 years) and, failing that, an action for unfair competition or free riding.

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