Why black and white is not the new colour

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Historically, the practice of the Office for Harmonisation in the Internal Market (OHIM) was that if a mark was registered in black and white/greyscale, then colour variations of the mark would also be protected. OHIM, however, has altered its practice so that the position now is that an earlier trade mark registered in black and white/greyscale will not be identical to a later filed colour version of the mark, unless the differences in colour/contracts of shade are insignificant.

A consequence of this is that if a mark is only used in colour, the black and white registration may be at risk of revocation for non-use. Similarly, it may be difficult to establish infringement of a mark, registered in black and white/greyscale but only used in colour.

Applicants should therefore ensure the application is made in the colour(s) in which the mark will actually be used in practice.

Proprietors should also review existing black and white/greyscale registrations against actual use of the mark and consider filing new applications in colour, if necessary.