Elizabeth S. Dipchand, Harneet Gill
LVMH, a prominent French luxury goods company, was dealt a blow to its Veuve Clicquot enforcement strategy in a recent decision coming out of the EU Court overturning the earlier decision of the European Union Intellectual Property Office (EUIPO).
The exclusivity of the orange colour used for the packaging of the Veuve Clicquot champagne bottles was at the heart of the issue. The judgement, in favour of discount retail chain, Lidl, emphasizes that colour does not necessarily constitute a sufficient element to hold a trademark exclusively without the other trappings of use in association with the claimed goods or services.
LVMH’s use of the orange in association with Veuve Clicquot dates back decades and acquired distinctiveness in the EU in 2006. LVMH argued that Lidl’s Champagne packaging was confusingly similar to Veuve Clicquot’s label. Lidl, in turn, appealed the registration of the trademark arguing a lack of distinctiveness. The EU Court declared that LVMH did not have sufficient evidence to establish that the orange colour is a distinctive sign of a specific brand amongst European consumers – this was specifically the case in Greece and Portugal.
While this battle over branding colour is not the first – Christian Louboutin and Yves Saint Laurent had a decade-long dispute over the right to produce scarlet soled shoes – this decision has opened the floodgates for additional disputes regarding the orange hue. Veuve Clicquot has been issuing legal warnings to other wine companies, over the last 20 years, for the use of this orange shade.
This decision also brings to mind many other companies whose brand identities are centered around a colour. Tiffany, Aston Martin, and Hermès with their blues, greens, and oranges. While companies may employ a myriad of strategies to entice their consumers, this judgement clearly illustrates that a colour may not necessarily be protected without taking consistent and coordinated steps to do so.
For deeper insights on colour trademarks and their implications, reach out to Elizabeth S. Dipchand at edipchand.com.
