Color trademark of socks toe refused to registration

The General Court confirmed on June 15, 2010, the previous findings that the figurative trademark shown below and consisting in orange coloring of the toe of a sock could not be registered in class 25 for ‘clothing, namely hosiery, socks and stockings’ because it lacked distinctiveness.

The General Court said that the category of ‘positional marks’ raised by the applicant was not part of the Community Regulation and that anyway would have no incidence on the process to apply to assess the distinctive character of the mark applied for.


For the Court, the relevant public had a rather low degree of attentiveness for articles of hosiery as they are not usually tried before purchase. It added that manufacturers’ marks are usually placed on socks but such marks are composed of word and figurative elements because they better suited the indication of a commercial original of goods than the mark at hands.

The decision shows the difficulties when it comes to registering a color mark on the Community level. The sign concerned actually took a proper direction as to the requirements of representing the color in the position which it would occupy on the products. However, the applicant erred when raising the category of ‘positional marks’ and did not substantiate his assertions and arguments with any evidence.


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