Color mark and depletion of color resources

Korea amended the Trademark Act to protect marks made of a single color as trademark. The amended law will go in effect on July 2007. Relevant enforcement decrees and regulations are to be amended accordingly.

So far, there is no detailed guideline on how the examination and registration will be done by the trademark office of Korea (Korean Intellectual Property Office, KIPO).

I personally wonder whether they will register a single color per se as trademark for a product category or they will register a single color in association of a traditional visual mark. For example, there is a color with computer color code #53205 (let’s say it’s green like green tea), and suppose one wants to register color #53205 for green tea, will KIPO register #53205 as trademark for green tea?

Examples from other countries tell us different stories. see BBC News. Cadbury is a chocolate company and has been using the trademark (shown above) for very long time. The trademark is composed of “Cadbury” and purple shade. The news article says, “the rules apply in a particular area, so Cadbury’s, for example, can argue that their famous shade of purple cannot be used by other chocolate makers.” Note Cadbury can “argue.”

I should point out Section 1 of UK Trade Marks Act 1994 just to show why this has been an issue in the UK.

1. Trade marks

(1) In this Act a ‘trade mark’ means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.

There is no other provision on the form of trademark than this. So, a trademark must be a sign. The next question should be whether a single color is a ‘sign.’

The amended Korea Trademark Act is clearly different. It specifically spells out ‘a color’ as a possible type of trademark. So, there is no question whether a single color is a sign. The real question is what they meant by a ‘single color.’

In Cadbury’s example, can Cadbury apply for a trademark with its purple color for chocolate in Korea? I think ‘yes’ under the amended Act. What if other chocolate company than Cadbury apply for a color trademark with purple color for chocolate in Korea? Would KIPO reject the application based on Cadbury’s prior use of the purple color in its trademark? (Suppose Cadbury has used its trademark in Korea for years.)

Cadbury has only used purple as a component of its trademark. Remind you Korea has been protecting trademarks that are composed of signs, letters, and colors.

This isn’t an easy question already.

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