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62 The International Bureau will assign a classification in accordance with the International Classification of the Figurative Elements of Marks (Vienna Classification) where the mark is not a mark in standard characters.
Mark Consists of a Color or of a Combination of Colors, as Such
63 In many jurisdictions, a color, as such, or a combination of colors may, in itself or themselves, function as a trademark, to differentiate goods and services of one enterprise from those of another. It is important to distinguish between marks that consist of a color, or colors, as such, and marks that may, for example, be word marks or stylised marks, or other non-traditional marks, that happen to be in color, as against being in black and white.
64 If an applicant wishes to file for the international protection of a mark that is a color, or combination of colors, as such, then he should place in box 7(a) a visual representation of the color and check box 7(d). An indication, in words, of the color(s) should also be given, in item 8(a). It will generally be required that the color or colors be indicated in a way that is clear, understandable, durable and easily accessible, and this is usually attained by the applicant indicating, by words, the color or colors in question, followed by a reference to an international color classification system, such as Pantone.
65 If the applicant wishes also to provide a description in words for the color(s) applied to the goods or used in relation to the services that are the subject of the application for protection of a mark that is a mark in color, as such, this should be done in item 9(e), which provides for a description of the mark.
Color Claimed
66 NOTE: the indication that the applicant claims color as a distinctive feature of the mark is not to be confused with a mark that consists of color, or of a combination of colors, as such (see above).
67 Item 8 provides for an indication, in box (a), that the applicant claims color as a distinctive feature of the mark. A color claim means that the applicant considers the color or colors to be an integral or essential part of the mark. If color is claimed, the box in item 8(a) should be checked by the applicant to indicate that he is claiming color as a distinctive feature of the mark, and the applicant should also indicate, in words, the color or colors claimed. In item 8(b), the applicant can further indicate, for each color, the principal parts of the mark that are in the color or colors concerned. In fact, this is a requirement in certain designated Contracting Parties, where the international application includes a color claim.
68 NOTE: in certain designated Contracting Parties, the very fact that the reproduction of the mark is in color will require automatically that color is claimed expressly, giving an indication, in words, or the color(s) concerned. In order to avoid receiving a notification of provisional refusal from such Contracting Parties, it may be advisable for applicants who are seeking protection for a mark that is in color(s), to include also in the international application a color claim by checking the box in item 8 and completing the remainder of item 8(a). Reference is made, for example, to Information Notice No. 4/2009, issued by the International Bureau
(see paragraph 109 below) concerning designations of the United States of America (entitled Tips for Holders of International Registrations Seeking Extension of Protection to the United States of America: Avoiding Provisional Refusals) where a suggestion made by the USPTO was noted as follows:
“[…] The USPTO encourages the inclusion of a color claim whenever the mark is in color, along with
an indication by words of the color(s) claimed and a description of where the color(s) appear(s) in
the mark.”
69 Please refer to paragraph 54, above regarding the inclusion in box 7(b) of a reproduction of the mark, in color, where the reproduction of the mark in box 7(a) is in black and white and the applicant intends to make a color claim.
70 NOTE: if the mark contained in the international application is a color mark and the applicant does not claim color as a distinctive feature of the mark, that does not mean that the International Bureau will or may publish a black and white reproduction of the mark. The mark as published by the International Bureau
will correspond to the mark that is in the international application, which in turn will correspond to the basic mark – that is to say, a reproduction in color.
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