Libertel Groep BV V Benelux-Merkenbureau Case Study

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Libertel Groep BV v Benelux-Merkenbureau (C-104/01) in 2003 was the first case dealt in court where the ECJ answered the question of the ability to register a single color and whether it is able to include the required feature of distinctiveness. The court proceeding dealt with the Dutch company Libertel, which had filed a trade mark application in order to register an orange color to represent their mobile telecommunication goods and services under classes 9, 35 and 38. In the application, the representatives of Libertel had reproduced the trade mark as an orange triangle describing it with the word “orange” without further reference to any color code available. Due to the lack of distinctive character, the competent authority refused to register the application. Libertel appealed against the refusal, first before The Hague Regional Court of Appeal and further before the Supreme Court of the Netherlands. As inquiries arose regarding the correct application of Articles in relation to single abstract colors, these questions were referred to the European Court of Justice in order to gain clarity. The Court gave a complete examination of the position of single colors as trademarks, and recognized that a color may constitute a trademark if it is a sign which one is able to represent graphically and has the ability to distinguish goods and services of one undertaking from those of other undertakings. In other words, if a single color is able to meet the three criterion stated,

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