T-38/24, OMV AG v. European Union Intellectual Property Office (EUIPO)

Court

European Union General Court

Our Position

The assessment of the inherent distinctiveness of color combination trademarks is not subject to the higher threshold set forth for a single-color mark but is the same assessment applied to any other trademarks.

When assessing the distinctiveness of a color combination trademark, due account should be taken of all relevant circumstances including, in particular, the arrangement of the colors contained in the trademark, and the market practice in the relevant industry. Indeed, especially when it comes to non-traditional marks/color combination marks, an established market practice might serve to demonstrate that the relevant public is accustomed to perceiving a specific sign as a trademark, overcoming any general presumption that such signs are not perceived as trademarks.

Therefore, evidence substantiating that consumers generally expect market operators to communicate origin through specific signs should be taken into consideration when assessing the market practice in the relevant field, and this evidence is not only relevant when assessing acquired distinctiveness.

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