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The EUIPO Board of Appeal recently upheld a request for a declaration of invalidity against a colour combination mark, on the grounds that its imprecision allowed for multiple different combinations of the two colours. Despite a variety of arguments from the parties ranging from acquired distinctiveness to bad faith, the Board of Appeal’s decision turned on the simple question of whether the mark met the basic “Sieckmann” criteria, with the Board holding that, in the case of marks consisting of combinations of colours per se, the colours must be systematically arranged in a predetermined and uniform way, such that the subject matter of the mark is clear and precise.
To read our full briefing on this subject and discover the implications of this decision, please click here.