Colombia Trademark Caselaw | No Trademark Protection for Instagram’s Colors
A recent decision from SIC, Colombia’s patent and trademark office, refused Instagram LLC’s application to register its logo’s color combination as a color trademark. The proposed mark consists of “solely of color gradient in which the lower left corner is yellow, fades to orange, and the lower right corner is red and pink. The top of the gradient is blue and purple, fading to pink (…)”, which SIC deemed not inherently distinctive when applied to goods and services in classes 9 and 42.
SIC found that the subject colors and tones included in the application are commonly used by different companies in the digital, technology and software areas, which would result in the proposed mark not creating the impression of a source indicator in consumers’ minds. The refusal also stated that not only would a grant of the proposed mark unjustly prevent other competitors from using such colors, but it would also be useless, since it would not effectively identify the source of goods and services.
Instagram’s logo as filed under Application No. SD2019/0000290
Furthermore, SIC outlined the conditions under which colors are registrable in Colombia, pointing out that:
A color mark can be refused on two different grounds: a) for not being inherently distinctive, and b) where it consists of an isolated color, without any demarcation to give it a specific shape. However, It would be possible to obtain a registration for an otherwise non-registrable color mark via secondary meaning.
Non-traditional trademarks are a natural result of the current business dynamics; thus, color marks can be registered if they are distinctive enough to work as source indicators.
Primary colors are not registrable per se, but that does not exclude the possibility of registering a specific tonality. Also, a color must be delineated to give it a specific shape, for it to be registered.
An applicant must produce secondary meaning evidence, along with the corresponding application, when filing for the registration a mark consisting of an isolated color.
Click here to request a copy of SIC’s or in case you wish any additional information.
