Katherine González, one of our associates whose field of specialty is Intellectual Property, has written an article for the medium "Criterios Digital". In her article, she analyzes the possibility of registering a color as a trademark in the Andean Community.
Her article begins by offering a brief description of what a brand is to guide the reader on what to read next: "A brand is any sign capable of graphic representation, which can distinguish a product or service in the market.
"It also informs that "the Andean community norm provides for the possibility of registering as a trademark a color delimited by a shape, or a combination of colors. Thus, it is possible to register a trademark made up of only one color as long as it is included in some line, shape, or silhouette. Though the trademark shouldn't fall in any of the grounds of irregularity provided for in the Law."
As reported by the Andean Community Court of Justice, the use of color must be arbitrary so that, in this way, the business origin can be identified through it.
In the article, González clarifies that if the color is not delimited in any way, it can not be registered since a single person cannot be allowed to own a color as such; this would give a person "an inordinate competitive advantage" and "would significantly affect the access of third parties to the market."
Later in her article, our associate points out that when examining the registration of a trademark made up of a color, the Intellectual Property Office must take the following things into account: the applicable legal elements, the real context of the market in which the trademark, once registered, will begin to work, and "the principle of primacy of reality".
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