Abstract: The legal status of non-traditional trademarks stirs up enormous controversy owing to the specific nature of these kinds of trademarks and the uncertainty of juridical regulation. The need to agree to a united approach of regulation is dictated by the existing imbalance between the interests of business society and government authorities. The author seeks to reveal similarities and differences with respect to the approach of judicial and administrative bodies as to the registration of non-traditional trademarks – colour trademarks in two different jurisdictions (EU and Russia). The relatively recent case law in both jurisdictions illustrate an apparent reluctance to grant the status of colour trademark. Further, the concept of acquired distinctiveness is still a stumbling block in the way of successful registration of colour trademarks due to complexity in proving the same. For the resolution of the situation at hand, legislative and judicial bodies have to adhere to one-for-all approaches concerning non-traditional trademarks, with any other approach leading to legal uncertainty, thereby negatively impacting intellectual property as a whole.
Author: Mr. Konstantin Voropaev is a lawyer and compliance officer with extensive experience in different industries such as pharmaceuticals, FCMG, IT etc. The author works on international commercial arbitrations in Russian, European and Central Asian jurisdictions, and possesses an LL.M in International Commercial Law from Robert Gordon University, Scotland. He may be contacted at firstname.lastname@example.org.
The full text of the article can be found as a PDF here.