Earlier this month, the Fifth Board of Appeal (BoA) at the EUIPO denied the registration of a color combination for agricultural machinery, specifically field sprayers, classified under Class 7 of the Nice Classification. The refusal stemmed from a lack of compelling evidence to demonstrate that the combination of green and orange colors had acquired distinctiveness through use, as stipulated in Article 7(3) of the EU Trade Mark Regulation (EUTMR). The application, submitted by Amazonen-Werke H. Dreyer SE & Co. KG, sought to register their specific green (Pantone 7742 C) and orange (Pantone 1505 C) combination. However, the initial examination and subsequent appeals were unsuccessful due to the sign's inherent lack of distinctiveness, which was a fundamental requirement under Article 7(1)(b) EUTMR. In their appeal under Article 7(3), the applicant argued that extensive use of the color combination in the EU had led to acquired distinctiveness. The BoA acknowledged that proving acquired distinctiveness requires various forms of evidence, including market share, duration and extent of use, promotional investments, and consumer recognition. However, they emphasized that primary evidence, such as surveys and market studies, is crucial for substantiating claims of distinctiveness. The Board accepted only a market survey from France and industry statements from Germany as primary evidence, finding the overall evidence insufficient. The BoA noted that for a non-distinctive sign to gain distinctiveness, it must independently identify the origin of the goods. Since the color combination was frequently used alongside the brand name “AMAZONE,” the applicant needed to demonstrate that it could be recognized independently. Ultimately, the evidence provided, primarily focused on France and Germany, did not convincingly establish that the color combination had acquired distinctiveness throughout the EU, as required by EUTMR. This ruling highlights the complexities faced by applicants in securing trademark protection for color combinations within the EU framework.
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