On January 8, 2007, the Board of Appeal denied registration to an orange colour mark in classes 35, 37 and 39. For the Board, the distinctiveness of a colour per se without prior proven use was inconceivable, except in specific circumstances.
Also, the sign was a secondary colour for which a monopoly would unduly restrict the availability of colours for traders. Colours have in our view a higher distinctiveness for services than for products, but this decision illustrates the importance of choosing a proper pantone for filing purposes.