## Facts

- A building-products company applied in Germany to register a trade mark consisting of the colors blue and yellow for goods such as adhesives, solvents, paints, and insulating materials.
- The application depicted a rectangle divided horizontally (upper half blue, lower half yellow) and specified the shades using recognized color codes (e.g., RAL/HKS systems).
- The written description stated the colors were intended for use “in every conceivable form” on the relevant goods.
- The German Patent Office refused registration.
- On appeal, the German Federal Patents Court referred questions to the Court of Justice of the European Union (CJEU) on whether and how abstract color combinations can satisfy the EU trade mark definition requirements.

## Issues

1. Whether colors or combinations of colors, claimed in the abstract and without contours, can constitute a registrable “sign” under Article 2 of Directive 89/104.
2. What level of graphic representation, clarity, precision, and uniformity is required for an abstract color-combination application to satisfy Article 2.
3. Whether, even if Article 2 is satisfied, the trade mark authority must still assess refusal grounds under Article 3, including distinctiveness and the public interest in keeping colors available for competitors.

## Decision

- The CJEU ruled that colors or combinations of colors claimed in the abstract can, in principle, constitute a trade mark under Article 2 if they function as a sign in context and are capable of distinguishing origin.
- For graphic representation, an application for a color combination must present a systematic arrangement associating the colors in a predetermined and uniform way.
- A mere juxtaposition of two or more colors without a fixed arrangement, or a claim to use colors “in every conceivable form,” lacks the required precision and uniformity and therefore fails Article 2.
- Satisfaction of Article 2 does not end the inquiry; the competent authority must still examine Article 3 refusal grounds, considering all relevant circumstances, including any use made of the sign and the public interest in not unduly restricting color availability.

## Legal Principles

- A non-traditional mark based on colors must meet the cumulative requirements that it is a sign, is capable of graphic representation, and is capable of distinguishing goods or services by origin.
- Graphic representation must enable authorities and third parties to determine the scope of protection with clarity, precision, and objectivity; for color combinations, this requires a predetermined, uniform arrangement, not an open-ended claim.
- Reference to internationally recognized color identification codes may support precision, but does not cure an indeterminate claim as to arrangement or form.
- Even where a color-combination sign meets the definition of a trade mark, registration remains subject to examination for distinctiveness and other exclusions, with attention to the public interest in keeping colors free for competitors in the relevant market.

## Conclusion

The CJEU held that abstract combinations of colors may qualify as trade marks only when the application fixes a clear, predetermined, and uniform arrangement that provides a precise scope of protection, and it confirmed that authorities must still apply ordinary registrability and refusal tests, including distinctiveness and the public interest in preserving color availability.


Heidelberger Bauchemie GmbH v. Deutsches Patentamt, Case C-49/02 (C.J.E.U. 2004)