On 26 March 2025, the General Court (GC) issued its judgement in Lotus Bakeries v European Intellectual Property Office (EUIPO), Case T-1096/23, upholding the EUIPO’s decision to refuse the registration of Lotus Bakeries’ red and white colour combination mark that the company sought to protect for its range of baked goods. The decision, while not particularly groundbreaking, discusses important considerations about the role of colour in branding and whether simple colour combinations can be sufficiently distinctive to warrant exclusive rights.
Background
Lotus Bakeries is a Belgian multinational snack food company that was founded in 1932 and is perhaps best known for its Biscoff biscuits and spreads. On 22 February 2022, it filed an EU application for the following colour combination mark covering “biscuits; cakes; confectionery; fondants (confectionery); gingerbread; pastry (industrial); speculoos (caramelised biscuits); spreads on the basis of biscuits, speculoos (caramelised biscuits), coffee and/or chocolate; waffles; ice cream; edible ice; chocolate; chocolate products” in class 30:
In their decision of 24 February 2023, the EUIPO examiner rejected the application on the basis that the mark is not distinctive. In particular, the examiner held that red and white are commonly used colours on biscuit, chocolate and pastry packaging. Lotus Bakeries failed to explain why this colour combination would be perceived as “unusual” or “striking”. Ultimately, the examiner felt it was unlikely that consumers would attach much trade mark value to it or associate it with a single company.
On 4 April 2023, Lotus Bakeries filed a Notice of Appeal against the decision. It claimed that its mark meets the minimum threshold for distinctiveness due to the original combination of colours and that the examiner was wrong to disregard the evidence of marketplace use that was submitted.
The Board of Appeal’s Decision
The Board of Appeal (BoA) agreed with the examiner that Lotus Bakeries’ colour combination mark is not distinctive. It took the view that red and white are popular colours in marketing. Red is eye-catching and stands out, while white is a neutral colour that pairs easily with others. The BoA also noted that the way the mark is used in the marketplace (examples of which are shown below) is irrelevant in relation to its distinctive character, as was correctly indicated by the examiner. Consequently, the appeal was dismissed.
The General Court’s Decision
Not ready to admit defeat, Lotus Bakeries took the matter to the GC, which undertook a thorough review of the issues surrounding distinctiveness. The GC confirmed that for colours or combinations of colours to constitute a trade mark, they must be capable of distinguishing the product or service covered by that mark as originating from a particular trader, and of distinguishing that product or service from those of other traders. It also confirmed that regard must be had to the general interest in not unduly restricting the availability of colours for those who offer the same products and services.
In addition, even supposing that Lotus Bakeries had made consistent use of its colour combination mark, this has no bearing on the fact that, by itself, the mark applied for is not capable of conveying specific information, particularly as to the origin of the products at issue.
Lotus Bakeries also tried to argue that the BoA had not followed its usual approach to the registration of colour marks or the EUIPO guidelines. They claimed that other similar marks had previously been accepted for registration and that the BoA had assessed Lotus Bakeries’ colour combination mark using the criteria for single-color marks. Lotus Bakeries considered that this went against the principles of fairness and equal treatment. However, this argument was quickly dismissed with the standard reply that the offices and courts are not bound by previous decisions and each case must be judged on its own merits.
In summary, the GC found that the BoA had not erred in its assessment and was right to find that Lotus Bakeries’ colour combination mark is devoid of distinctive character.
Comment
This case serves as a reminder that colours and colour combinations are notoriously difficult to register. Trade mark law requires that such marks meet seemingly high standards of distinctiveness, meaning that common or widely used colour combinations, even if they are part of a brand’s identity, may not automatically qualify for protection.
Merely using a certain colour combination across packaging and advertising is not enough. The colours must be able to show a clear link to the brand in the minds of consumers. For companies looking to protect their brand colours, this judgement highlights the importance of creating a colour scheme that is not only aesthetically appealing but also unique enough to stand out in the marketplace.
