Are special brands also distinctive?
In addition to words and 'drawings' (i.e. logos), the law explicitly mentions colours, shapes and sounds as examples. On paper, the legislator is of the opinion that these types of brands can also have distinctive character. In other words: consumers can distinguish competing products and services based on, for example, colours (combinations), sounds and other characteristics. On paper, it is well regulated.
However, the practice is different. In case law, the starting point is that the public is less likely to recognize an indication of origin in a special brand. In order to qualify for registration, a little more is therefore required of these types of brands. The criterion here is that special brands are distinctive when they deviate significantly from what is customary in the market.
So for example: if in an industry every player uses a different corporate identity colour, a new colour will not quickly deviate significantly (because the norm is that all competitors use different netherlands telegram data colours). In that case a colour mark registration is not possible.
A special mark that does not deviate significantly from the norm is therefore not eligible for registration, because it lacks distinctiveness. And a special mark is quickly assumed not to deviate significantly. However, there is a solution to obtain a trademark registration later: by proving that the mark has become established.
This means that the brand has acquired distinctiveness for the public through the intensive use that has been made of it in the market. That is why you can still register it at a later stage. In order to achieve this, you as a brand owner have to submit a lot of evidence. A good example of where this has been successful is the burgundy red of the Swiss army knives from Victorinox.
A trademark must be 'clearly and precisely' identifiable
Another thing you need to keep in mind is that you need to make the mark visible (or audible, for a sound mark) 'clearly and precisely' in the trademark register. For example, by means of an animation or sound file, or an image of a colour with an international colour code, depending on the type of mark. There are several ways to make a mark known in the register. Ultimately, it is important that the person consulting the trademark register clearly understands which mark is actually being claimed.
