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In decisions on registrability of colours the Board applied provisions of the
Lithuanian PTO Guidelines for Registration of Trade and Service Marks establishing
that a colour is registrable as a trademark provided it has acquired a secondary
meaning through its long use, it is not functional and it does not offer its
holder advantages in competition with other participants of the market. The
Guidelines also establish that generally elementary geometrical figures with
two colours are not registrable, particularly if these are simple natural colours.
Based on these provisions the Board considered the examiner's refusal to register
certain marks motivated by lack of distinctiveness.
1) The examiner refused to register the brown colour as a trademark for "transport,
packing and storing of goods, services in the field of transport and delivery
of letters, documents, messages, printed matter and other goods and valuables"
in the name of United Parcel Service of America (US). The applicant submitted
evidence in proof that this colour had long been used by the company on uniforms,
automobiles, advertisements and advertising materials not only in Lithuania
but wordlwide and had become a symbol of the applicant's "international
express delivery". The Board decided that the brown colour is not functional
and does not give any market advantages in the filed of services, relating to
class 39. Based on all these considerations the Board allowed the brown colour
for registration in relation to "dispatching services" however the
Board supported the Examiner's refusal to register the brown colour as a trademark
for the other services specified in the application.
2) A similar decision was made in another case where A.Sabonis' (a famous Lithuanian
basket-ball player) Zalgiris (a well-known Lithuanian basket-ball team and club)
( Basketball Center (LT) filed an application for a combination of white and
green colours in relation to goods and services in a number of classes (A.Sabonis
is a famous Lithuanian basket-ball player and Zalgiris is a well-known Lithuanian
basket-ball team and club). The Board satisfied the appeal in part, allowing
registration of these colours only for those goods and services, in relation
to which the combination of colours had acquired a secondary meaning of traditional
colours for the famous Zalgiris basketball team.
3) LuK Lamellen Kupplungsbau GmbH (DE) seeked to reverse the examiner's refusal
to register yellow colour in relation to goods in class 7, 12 and services 37
and 41. The Board decided that the yellow colour cannot be monopolized because
it is a simple, not original colour widely used in many spheres due to its brightness
drawing everybody's attention. Yellow colour is widely used in spheres related
with goods in class 12 particularly in road signs, traffic lights, etc. The
applicant submitted evidence of use of yellow colour on packages, documents,
invoices, in catalogues, etc. that had some connection with goods in class 12,
however these were not samples of use for goods in class 12. Besides, judging
by the submitted evidence the Board decided that the consumer would first perceive
the inscription "LuK" and only then notice that the inscription was
on a yellow background. The applicant failed to submit evidence of use in relation
to the other goods and services specified in the application.
The Board supported the examiner's refusal and did not allow the mark for registration.
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INTELS-LITHUANIA |