Allegro’s controversial bid for a single-colour mark

On 29 July 2022, Allegro – the biggest e-commerce platform in Poland and one of the most significant in Europe – applied for a single-colour trademark, the orange colour RGB255/90/0 (application Z.545666). The case has attracted a surprising amount of attention among the Polish general public.

The mark was applied for in Class 35 for the following services:

Providing an online platform for buyers and sellers of goods and services; Providing a website on a worldwide computer network through which third parties can offer and procure goods and services, place, determine the status of, and execute orders and trade orders, enter into contracts and make transactions.

There are a limited number of colours available to register as trademarks, meaning that a small number of registrations for a given good or service could exhaust the entire range of available colours. Such a monopoly would be antithetical to the fundamental idea of fair competition that is at the heart of trademark law. Colour alone is not considered capable of distinguishing marks, except under exceptional circumstances for which the applicant is required to demonstrate acquired distinctiveness through use.

Many see the Allegro registration as an attempt to monopolise the colour and it will be far from easy for the platform to obtain this registration. Allegro must prove that the applied-for colour has acquired distinctiveness, however, even this is no guarantee of success. Its competitors (eg, Amazon and Shopee) also use the colour orange and they may attempt to oppose the application.

Allegro is not the first applicant to file for a colour sign in Poland and the colour orange is popular among entities operating in the country. ING BANK ŚLĄSKI SA also filed for the colour orange (application Z.547123) with the Polish Patent Office, for financial services in Class 36.

There are currently two trademarks registered with the office for different shades of orange (registration R.271601 and R.321444), both belonging to Orange Brand Services Ltd for cell phone services in Class 38.

Another well-known example of a colour mark in the Polish market is the colour purple registered by Play 3gns Spółka z Ograniczoną Odpowiedzialnością Spółka Komandytowa for communication services in the field of mobile telephony in Class 38 (registration R.310678) .

Play successfully registered the single-colour purple mark on its second attempt. During the first, in 2010, the applied-for sign was deemed to lack distinctiveness. The mobile operator appealed, then brought a cassation appeal before the Supreme Administrative Court, but without success. Seven years later, in 2017, Play returned to the Polish Patent Office with sufficient evidence to prove that it had now acquired the necessary distinctiveness for the registration to be granted.

Differences in European and Polish registers

As of September 2022, there are 323 single-colour trademarks filed with the EUIPO, 25 of which have been granted protection. Regretfully, we did not find any applications for single-colour marks filed by Polish entities. We did, however, find a few registrations for colour combinations registered by Polish companies (see below).

It is not easy to search for colour marks in the Polish Patent Office’s database and on searching we found only 16 results. Of these, six applications were refused and 10 are still pending. There is no information regarding applications for single-colour signs before 28 July 2016. To find applications filed before this date, one must search for figurative marks in the Vienna Classification that have one dominant colour. When we did this we found 19 results.

The aforementioned orange and purple single-colour marks are not the only ones registered in Poland. Applications for single-colour marks are always interesting and arouse a great deal of emotion. We will continue to observe Allegro’s orange application with interest and report our findings.