Colour combination: Deutsche Bahn does not have exclusive rights

In cases T-404/09 and T-405/09 (12 November 2010, reported here by Class 46) the General Court has confirmed that the criteria applied for assessing the distinctive character of colour trademarks is the same whether the proprietor is supplying goods or performing services. It rejected Deutsche Bahn’s argument that the supply of services does not inherently involve the use of a colour, so the colour performs no function in connection with services and colour trademarks can therefore be registered (see case T-173/00 KWS Saat AG v OHIM).

The Court decided that the two colours lack distinctiveness individually, and in combination they presented no perceptible difference from the colours commonly used for railway services. As the OHIM Board Appeal had noted, light grey is commonly used for technical equipment used on railways, and red is used for warning signs and other situations in which the aim is to make people notice something, including advertising. The Board of Appeal also noted that grey could be seen as dirty white, the combination of which with red is commonly found on barriers and similar devices, including those at railway crossings. Looked at overall, red and "dirty white" was functional, not an indication of the origin of the services.