## Facts

- Wm. Wrigley Jr. Company (Wrigley) applied to register the single color “light green” as a Community trade mark (CTM) for chewing gum (Class 30).
- An OHIM examiner refused registration on the basis that the applied-for color lacked distinctive character for chewing gum.
- Wrigley appealed the refusal to OHIM’s Third Board of Appeal (Case R/122/98-3).
- The Board of Appeal issued its decision in 1998, reported at [1999] E.T.M.R. 214.

## Issues

1. Whether the single color “light green,” applied to chewing gum, is capable of distinguishing Wrigley’s goods from those of other undertakings for CTM purposes.
2. Whether “light green” for chewing gum lacks distinctive character because consumers are likely to see it as a commonplace or informational color (including as an indication of flavor or freshness), not as a badge of trade origin.
3. Whether Wrigley showed acquired distinctiveness through use sufficient to overcome the refusal (if relied upon on appeal).

## Decision

- The Third Board of Appeal dismissed Wrigley’s appeal and confirmed the examiner’s refusal.
- The Board held that “light green,” used alone for chewing gum, lacked distinctive character and therefore was not registrable as a CTM on the record before it.
- Any claim that the color had come to identify Wrigley required proof of acquired distinctiveness; the Board found that the application could not succeed without such proof.

## Legal Principles

- A CTM may consist of a color per se, but it must still meet the same basic requirement as any other mark: it must be capable of identifying commercial source for the specified goods.
- Distinctive character is assessed in relation to the goods and the likely understanding of the relevant public; in consumer goods markets, a color alone is often seen as decoration or product information rather than source identification.
- Where a color is customary or commonly used in the sector (including to signal qualities such as “mint” or “fresh”), it will ordinarily fail for lack of distinctive character.
- A sign that lacks distinctive character at the outset can be registered only if the applicant demonstrates that, through use, the sign has come to identify the applicant’s goods to the relevant public (acquired distinctiveness).
- Registration policy must take account of the need to avoid granting one undertaking exclusive rights over basic colors that competitors may legitimately wish to use in the market.

## Conclusion

In WM. Wrigley/Light Green, the OHIM Third Board of Appeal confirmed the refusal of Wrigley’s attempt to register the single color “light green” for chewing gum, finding that the color did not function as a trade mark for those goods because it lacked distinctive character and, absent persuasive evidence of acquired distinctiveness, would be perceived as a commonplace or informational color rather than an indicator of origin.


WM. Wrigley/Light Green, Case R/122/98-3, [1999] E.T.M.R. 214 (1998)