Colour trademarks: A rare but sought-after form of protection in the EU

Following the refusal of a colour trademark application by German construction company Weischer GmbH, Colombe Dougnac offers advice on how to establish distinctive character in EU colour mark applications, and discusses how Austrian drinks company Red Bull was able to draw on its reputation and portfolio of marks to successfully enforce its distinctive colour combination. 

On 10 February 2026, the EU Intellectual Property Office (EUIPO) rejected the application for the colour trademark no. 19202350 (shown below) filed by the German company Weischer GmbH for metal products (Class 6). 

The EUIPO considered the colour to be: "not sufficiently distinguishable from other basic colours, as the relevant public will only have an imperfect recollection of the shade. Since the colour is customary in the relevant trade, it does not enable the relevant public to directly distinguish the goods from those with similar shades from other commercial sources." According to the Office, this shade would not be likely to be identified or remembered by the relevant public as an indication of the commercial origin of the products.

This decision is entirely consistent with established EU case law criteria for assessing the distinctiveness of so-called “non-traditional” trademarks, such as motion, sound and colour marks. Indeed, while case law has long affirmed that the criteria for assessing the distinctiveness of this type of trademark are no different from those for other trademark categories, the function of guaranteeing origin can be more challenging. It is not easy for the relevant public to identify the origin of a product by a colour alone, without the addition of a secondary verbal or figurative element, for example. 

While filing of a colour trademark is permitted in the EU, therefore, assessing the conditions for registration can be complex, and the scope of protection (and defence) of such marks appears more limited than that of a verbal or semi-figurative sign. 

—What is the EUIPO’s criteria for assessing distinctiveness? 

From these various decisions, we can retain the EUIPO's criteria for assessing distinctiveness: 

• The shade of colour must not be commonly used in the sector of activity (such as, for example, the colour orange for clothing);
• The shade of colour must not be confused with that of the product (such as, for example, the colour red to designate wine);
• The description of the shade of colour must be very detailed;
• The shade of colour must not convey an association of ideas related to the products. 

More surprisingly, for designating alcoholic beverages, the shades:

were also rejected on the basis they were too commonly used in this sector. 

—Overcoming the block to registration 

In parallel, one way to overcome these rejections is to consider demonstrating the acquisition of distinctiveness through the use of the colour in relation to the designated goods. This is how Kraft Foods obtained registration of the colour shade:

on 27 October 1999, for chocolates, by claiming and providing proof of the acquisition of its distinctiveness through use, despite the opposition of Cadbury UK Limited, owner of the earlier UK trademark:

which withdrew its action without a decision being rendered. 

Given this restrictive interpretation, trademark protection for combinations of different colours has developed. The following trademarks have thus been accepted for registration: 

2. Defending a colour trademark: Protection enhanced by reputation 

While characterising their distinctiveness may seem easier, defending and protecting them is more challenging. 

In a 10 July 2025 decision, the EUIPO upheld the opposition filed by Red Bull GmbH against the three-dimensional trademark application filed by Gorbatschow Wodka KG for alcoholic and non-alcoholic beverages (Opposition No. B3194629, Red Bull GmbH v Gorbatschow Wodka KG). 

This decision illustrates the scope of protection afforded to colour trademarks, particularly strengthened by their reputation. 

Red Bull, owner of several colour combination trademarks, including the EU trademark No. 4381471:

opposed the EU trademark application No. 18808190:

for a designation of beverages in classes 32 and 33, based on Articles 8(1) (likelihood of confusion) and 8(5) (extended protection for well-known marks) of the EU Trademark Regulation (EUTMR). 

The EUIPO initially recognised the well-known nature of the earlier marks based on a substantial amount of documentation provided by Red Bull, including evidence demonstrating use since 1980, primarily in Germany, which was deemed sufficient to establish the reputation of the rights throughout the EU. The applicant company has demonstrated intensive and sustained use, notably through the provision of a survey showing a spontaneous recognition rate exceeding 90%, as well as market research demonstrating that a significant portion of the relevant public associates the mark with the Red Bull energy drink company.  

Regarding the comparison between the marks, the EUIPO considered that the presence of the distinctive verbal elements (GORBATSCHOW) and graphic elements (a dove and the representation of icebergs and mountains), as well as the three-dimensional shape of the mark, namely the can, were not sufficient to rule out the similarity between the marks. 

Although the similarity between the contested application and the earlier mark was considered weak, it was still sufficient to create a link between the signs. Relevant consumers in Germany are likely to associate it with the earlier mark, that is, to establish a mental "link" between the signs, particularly due to the repetition of a combination of two colours – blue and silver – in very similar, or even identical, shades, and in a clear, symmetrical, and uniformly distributed representation. 

Finally, the EUIPO recognised that this link could constitute harm, as the contested trademark application could benefit from the attractiveness of the cited earlier marks and profit from their reputation. 

The trademark application was therefore rejected. 

It should be noted that Red Bull had attempted to register an initial trademark application in the form of 

which had been refused for "Energy Drinks" on the grounds that the description accompanying the application was too vague: "the protection sought includes the colours blue (RAL 5002) and silver (RAL 9006). The proportion of the colours is approximately 50% – 50%" (CJEU, 29 July 2019, Red Bull GmbH, C-124/18 P). 

This last decision grants a fairly broad scope of protection to colour trademarks, in this case supported by the demonstration of the earlier trademark's reputation, based on Article 8(5) of the EUTMR. It illustrates the enhanced protection afforded to well-known trademarks in the EU, which extends beyond the scope of strictly similar goods, even for trademarks consisting solely of colour shades, in order to effectively combat the filing and unfair use of trademarks that attempt to profit from the reputation of third parties. 

To find out how about protecting and enforcing colour trademarks in the EU, speak to your Novagraaf attorney or contact our team.