Why colour marks in Denmark are so difficult to register

Colour marks are notoriously difficult to register internationally, particularly in Denmark, and perhaps for good reason. Colour can have a profound and sometimes unexpected impact on people and has been proven to change consumer behaviour. While many companies have tried to register colour marks in the country over the years, most have failed due to its infamously strict rules. There are a few hundred colour marks registered throughout the European Union, but only two registrations for a single colour have been granted by the Danish Patent and Trademark Office (DKPTO): one in Class 7 and one in Class 39.

Primary challenges

One of the most potentially frustrating aspects of trying to register a colour mark in Denmark is assessing what constitutes a ‘normal’ colour for the goods or services involved, as this can make an application considerably harder to justify. For example, many associate the colour green with environmental or health-related products, while dark purple or navy blue is often considered stylish or sophisticated and can thus be found on many luxury goods. In theory, if the colour in an application deviates from what might be regarded as ‘usual’, it can simplify the process.

It is also crucial to consider whether a colour mark might unduly restrict competitors. As there is, arguably, a limit to the number of colours in existence, it is logical for an IP office to maintain a high threshold for their registration.

In many countries, it is necessary to provide significant evidence of market use, recognition and brand association for the colour featured in an application. This could consist of historical records of packaging or marketing, current sales figures or market share, but some of the most powerful evidence can come from conducting market surveys. When successful, these demonstrate that a high percentage of the population recognise the colour and associate it with the brand in question. Denmark, like many countries, also has many trade organisations; confirmation of a colour association for a particular brand by one of these can further be a powerful supporting argument for registration.

It may also be helpful to demonstrate long-term use of a specific colour. The applicants for the two successful, single colour registrations in Denmark were able to demonstrate continuous use of the same colour for between five and seven decades respectively, which rules out many of the organisations operating today. While there is no specific description of such a boundary, and a shorter period of use might still be considered, longevity can certainly support other factors within an application.

The bottom line

While some applicants may consider the difficulty of obtaining a colour mark in Denmark unreasonable, it is essential to remember the emotions that a particular colour can evoke. As these arguably transcend brand loyalty or other factors affecting consumers’ decisions, it is understandable that the DKPTO feels the need to add a few extra hurdles for brands trying to harness the power of such marks. Whether those specific hurdles should be quite so challenging to leap is a discussion for another day.