More colours, same problem: Olymp loses EU trade mark appeals
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Marcel Pemsel
Oct 1, 2026, 1:21:48 PM (6 days ago) Oct 1
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More colours, same problem: Olymp loses EU trade mark appeals
The more the merrier? This does not seem to apply to colour combination marks in the EU. While the courts accept that the need to keep colours available to competitors is lower in comparison to single colour marks, two or more colours in combination are often not considered inherently distinctive, as two recent decisions from the General Court show (cases T-834/25 and T-835/25).
Background
Olymp Bezner KG (“Olymp”) filed for registration of the following abstract colour combination trade mark with the European Union Intellectual Property Office (“EUIPO”) covering goods in classes 18 and 25, including “backpacks” and various types of clothing:
Background
Olymp Bezner KG (“Olymp”) filed for registration of the following abstract colour combination trade mark with the European Union Intellectual Property Office (“EUIPO”) covering goods in classes 18 and 25, including “backpacks” and various types of clothing:
The claimed colours were RAL 9003, RAL 5011 and RAL 5000. The description read “The colours are arranged as three horizontal stripes, stacked one above the other and directly adjoining each other. From top to bottom, the colours appear in the following order: signal white, steel blue and violet blue. The length of the colour stripes is a multiple of their height. The overall height is divided among the individual colours as follows: 7/17 signal white, 3/17 steel blue, and 7/17 violet blue.”
Olymp also applied for registration of the following EU figurative mark for various types of clothing in class 25:
Olymp also applied for registration of the following EU figurative mark for various types of clothing in class 25:
The EUIPO rejected both trade marks as non-distinctive (Art. 7(1)(b) EUTMR). Olymp’s appeal to the EUIPO’s Board of Appeal (“BoA”) was unsuccessful, so Olymp filed an action with the General Court.
The General Court’s decision
The judges dismissed the action.
1. Abstract colour mark
They recalled that single colour marks and colour combination marks are, in principle, not inherently distinctive. They merge with the appearance of the goods and are not generally perceived as means of identifying commercial origin. The availability of colours may not be unduly restricted for other economic operators.
The Court confirmed that the case law developed for single colours also applies to colour combinations. While the risk of adversely affecting the public interest in keeping colours freely available may vary according to the characteristics of each sign, and that risk may be lower in the case of a systematically arranged combination of colours than in the case of a single colour, the public interest in keeping colours free for competitors applies to single colour and colour combination marks alike. Thus, the mere combination of colours is not sufficient to establish inherent distinctiveness.
Moreover, the Court confirmed the BoA’s finding that the use of coloured stripes in the clothing sector is widespread. In particular, the colours signal white, steel blue and violet blue, as well as combinations thereof, are customary in the clothing sector. They are not so unusual that they would be readily remembered and perceived as a source identifier.
In order to fulfil an origin-indicating function in relation to the goods concerned, a colour combination must, in principle, contain elements capable of individualising it in comparison with other colour combinations and attracting the consumer’s attention. This is particularly true because consumers must rely on their imperfect memory of the trade mark.
Olymp would have had to establish that its marks differed from other similar colour combinations or that any of its elements departed from the norm or customs of the clothing sector. Moreover, the fact that the relevant public is accustomed to the use of colour combinations in the sector concerned does not demonstrate that it perceives them as indicating the commercial origin of goods.
The judges were also not convinced by Olymp’s argument that combinations of three colours in the form of stripes are generally perceived not merely as decorative elements but as indications of origin, particularly where such colour combinations are used in the form of patches, embroidery or fabric tabs and are placed on the rear collar of jackets and waistcoats, at the waist area of jackets and waistcoats, on the side of the chest area of T‑shirts and polo shirts, diagonally on the side of trainers or on zips or buttons.
The Court acknowledged that the distinctive character of a sign must be assessed in the light of all relevant facts and circumstances, including all likely uses of the mark applied for, that is to say those forms of use which may be practically significant in view of the customs of the sector concerned.
However, the mere affixing of the sign to a product, label or display stand does not, in the judges’ opinion, automatically mean that the relevant public will perceive it as indicating the commercial origin. Otherwise, every applicant for an EU trade mark could circumvent the absolute ground for refusal of lack of distinctiveness merely by relying on a practically significant method of affixing the mark in the relevant sector.
The Court held that Olymp had not demonstrated that any placement of the mark on the goods would alter the perception of the relevant public and lead to the mark being regarded not as a mere decorative element but as an indication of origin.
Further, the purchase of clothing and similar goods is influenced to a significant extent by their colours, which also speaks against inherent distinctiveness.
The fact that similar signs had long been encountered by consumers on the market and had been perceived as indications of origin did not help Olymp because a colour or combination of colours may acquire distinctiveness through use (Art. 7(3) EUTMR).
Colours can have inherent distinctiveness only in exceptional circumstances, particularly where the number of goods or services for which registration is sought is very limited and the relevant market is highly specific. The judges found that the fashion market is not a highly specific market.
2. Figurative mark
The judges applied similar reasoning to Olymp’s figurative mark. The principal difference is the shape of the mark. According to settled case law, simple geometrical shapes like circles, lines or rectangles do not convey a message consumers will remember. Therefore, they lack distinctiveness. The overall impression created by the rectangle and the colours was not deemed distinctive.
Comments
The decision is a reminder that colour marks are, in principle, not inherently distinctive in the EU. Applicants should be prepared to establish acquired distinctiveness, which is, however, challenging to do across the entire EU. Other strategies such as filing a figurative mark (as Olymp did) are also likely to fail.
It can be inferred that applications for colour position marks would also be unlikely to succeed. Applying trade marks to labels or certain positions on the product where consumers expect to encounter trade marks does not confer the necessary minimum level of distinctiveness on the mark.
The General Court’s decision
The judges dismissed the action.
1. Abstract colour mark
They recalled that single colour marks and colour combination marks are, in principle, not inherently distinctive. They merge with the appearance of the goods and are not generally perceived as means of identifying commercial origin. The availability of colours may not be unduly restricted for other economic operators.
The Court confirmed that the case law developed for single colours also applies to colour combinations. While the risk of adversely affecting the public interest in keeping colours freely available may vary according to the characteristics of each sign, and that risk may be lower in the case of a systematically arranged combination of colours than in the case of a single colour, the public interest in keeping colours free for competitors applies to single colour and colour combination marks alike. Thus, the mere combination of colours is not sufficient to establish inherent distinctiveness.
Moreover, the Court confirmed the BoA’s finding that the use of coloured stripes in the clothing sector is widespread. In particular, the colours signal white, steel blue and violet blue, as well as combinations thereof, are customary in the clothing sector. They are not so unusual that they would be readily remembered and perceived as a source identifier.
In order to fulfil an origin-indicating function in relation to the goods concerned, a colour combination must, in principle, contain elements capable of individualising it in comparison with other colour combinations and attracting the consumer’s attention. This is particularly true because consumers must rely on their imperfect memory of the trade mark.
Olymp would have had to establish that its marks differed from other similar colour combinations or that any of its elements departed from the norm or customs of the clothing sector. Moreover, the fact that the relevant public is accustomed to the use of colour combinations in the sector concerned does not demonstrate that it perceives them as indicating the commercial origin of goods.
The judges were also not convinced by Olymp’s argument that combinations of three colours in the form of stripes are generally perceived not merely as decorative elements but as indications of origin, particularly where such colour combinations are used in the form of patches, embroidery or fabric tabs and are placed on the rear collar of jackets and waistcoats, at the waist area of jackets and waistcoats, on the side of the chest area of T‑shirts and polo shirts, diagonally on the side of trainers or on zips or buttons.
The Court acknowledged that the distinctive character of a sign must be assessed in the light of all relevant facts and circumstances, including all likely uses of the mark applied for, that is to say those forms of use which may be practically significant in view of the customs of the sector concerned.
However, the mere affixing of the sign to a product, label or display stand does not, in the judges’ opinion, automatically mean that the relevant public will perceive it as indicating the commercial origin. Otherwise, every applicant for an EU trade mark could circumvent the absolute ground for refusal of lack of distinctiveness merely by relying on a practically significant method of affixing the mark in the relevant sector.
The Court held that Olymp had not demonstrated that any placement of the mark on the goods would alter the perception of the relevant public and lead to the mark being regarded not as a mere decorative element but as an indication of origin.
Further, the purchase of clothing and similar goods is influenced to a significant extent by their colours, which also speaks against inherent distinctiveness.
The fact that similar signs had long been encountered by consumers on the market and had been perceived as indications of origin did not help Olymp because a colour or combination of colours may acquire distinctiveness through use (Art. 7(3) EUTMR).
Colours can have inherent distinctiveness only in exceptional circumstances, particularly where the number of goods or services for which registration is sought is very limited and the relevant market is highly specific. The judges found that the fashion market is not a highly specific market.
2. Figurative mark
The judges applied similar reasoning to Olymp’s figurative mark. The principal difference is the shape of the mark. According to settled case law, simple geometrical shapes like circles, lines or rectangles do not convey a message consumers will remember. Therefore, they lack distinctiveness. The overall impression created by the rectangle and the colours was not deemed distinctive.
Comments
The decision is a reminder that colour marks are, in principle, not inherently distinctive in the EU. Applicants should be prepared to establish acquired distinctiveness, which is, however, challenging to do across the entire EU. Other strategies such as filing a figurative mark (as Olymp did) are also likely to fail.
It can be inferred that applications for colour position marks would also be unlikely to succeed. Applying trade marks to labels or certain positions on the product where consumers expect to encounter trade marks does not confer the necessary minimum level of distinctiveness on the mark.
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