The CJEU is fairly strict in its assessment of the distinctive character of abstract colour marks. A sign consisting of a colour as such is not necessarily perceived by the relevant public in the same way as a word or figurative mark consisting of a sign which is independent of the appearance of the marked goods. Consumers are not accustomed to deducing the origin of goods from the colour of goods or their packaging without graphic or word elements, since a colour as such is not, in principle, used as a means of identification according to current commercial practice. It is also important to note that the relevant public rarely has the opportunity to make a direct comparison of products with different colour shades and therefore hardly notices slight gradations of colour shades. Consequently, small colour gradations are likely to be considered covered by the scope of protection of a colour mark,^[1] so that the number of different colours actually available as potential trade marks is much smaller than their theoretically available number. This small number means that the entire stock of available colours would be exhausted with just a few registrations of colours as trade marks for certain products. However, such a broad monopoly would not be compatible with the system of undistorted competition, especially as it would otherwise give an individual economic operator an unlawful competitive advantage.
This public interest in preventing monopolisation must be taken into account in the examination of distinctiveness. Against this background, it is only conceivable in exceptional circumstances that a colour as such has distinctive character irrespective of its use, for example^[2] if the number of products for which the trade mark is applied for is very limited and the relevant market is very specific.^[3]
The BGH has considered such a specific market to be possible in the case of the colour yellow for business and organisational consulting services in the energy sector; financial consulting services in the energy sector; technical and ecological consulting services in the energy sector, but not, for example, for telecommunications services.^[4]
In each case, specific factual findings on the practice and understanding of the respective public are required.^[5] If the sign applied for consists of a combination of several colours, it must also be examined whether the whole formed by their combination possesses distinctiveness.^[6]
Thus, according to the GC, the combination of the colours green and grey^[7] or orange and grey^[8] for gardening tools and yellow and grey for hoses^[9] does not possess distinctiveness. The colours or similar shades are usually used in colour combinations for garden products. A random arrangement of 24 different colour boxes, which rather creates a decorative impression, is also devoid of distinctive character.^[10] In the case of a colour mark ‘violet’ for cat food, on the other hand, it depended on the specific designation habits in the cat food sector.^[11] In any case, the colour purple was not distinctive for asthma remedies and inhalers.^[12]For goods in the field of renewable energies, various combined shades of green were devoid of any distinctive character.^[13] For processor housings, on the other hand, the colour mark ‘green’ was not devoid of any distinctive character because processor housings are regularly black or grey, but not coloured in a decorative manner.^[14]
Only in exceptional cases will abstract colour marks be easier to register for services than for goods because services do not inherently have a specific colour.^[15] In principle, however, no other criteria apply to services than to goods.^[16] However, the possibilities for using goods and service marks differ because use in the form of a physical connection between the sign and the product is not an option for service marks.^[17]