BKIP Limited

COPYRIGHT BKIP 2019
Is it possible to obtain registration in South Korea of a trademark consisting only color(s)? Nov 2019
“Colored trademarks” means in a broad way all trademarks consisting color(s) but specifically, trademarks consisting only color(s) and does not include any other elements. In this article, we will look into the colored trademarks consisting only color(s).
To file a trademark consisting only color(s) in South Korea, the applicant should select the trademark type in the application as “trademark consisting only color(s).” In the specimen, there should not be any vacant space since with the vacant space, the specimen may be acknowledged as a square device with color(s). The description of the mark should also be included in the application or attached to the application.
In conclusion, the answer to the question “Is it possible to obtain registration of a trademark consisting only color(s) in South Korea?” should be “It is possible in theory but almost impossible under Korean practice.” To obtain registration of a trademark consisting only color(s) in Korea, distinctiveness based on use should be acknowledged by the Korean Intellectual Property Office (KIPO). In this regard, however, it is extremely difficult to prove distinctiveness based on use under Korean practice since the KIPO rarely acknowledges it. If a trademark consisting only color(s) fails to obtain distinctiveness base on use in South Korea, it will be rejected by the KIPO on the grounds that the trademark is too simple and common for registration purposes. Further, a trademark consisting color(s) directly indicating the feature of designated goods including quality, effect and usage will also be rejected by the KIPO.
Even the KIPO does not have exact statistics for registered trademarks consisting only color(s). Through researches, however, it is viewed that few trademarks consisting only color(s) succeeded in obtaining registration in South Korea so far. “RIGO TRADING S.A” famous for “HARIBO” jelly was the lucky one.

On the other hand, although Korean major companies have been trying to obtain exclusive rights for their symbolic color(s) by filing trademarks consisting only color(s), the KIPO does not seem to be interested in granting exclusive rights for certain colors to certain parties.
Colors attract customers and create marketing effects. For that reason, most brands/trademarks are used in colors or combined with logos/devices in colors. It is easy to assume that many companies and individuals would wish to obtain exclusive rights for certain colors they are interested in. In contrast, if certain parties have obtained exclusive rights for certain colors, that could be unreasonable restrictions to other parties having no rights for those colors. In this light, the KIPO will keep their strict examination practice on trademarks consisting only color(s).