Although it is in principle possible to claim a specific color as a trademark – provided it is distinctive for goods or services – obtaining such registrations is notoriously difficult. Years ago, Deutsche Telekom succeeded in registering the color magenta for telecommunications services provided by its T-Mobile subsidiary – registration it has habitually defended aggressively. In fact, T-Mobile challenged a Dutch company’s use of the color in the Benelux region; however, the Dutch company fought back by seeking the revocation of the local magenta registration and ultimately prevailed. The Benelux Office determined that T-Mobile was using magenta for ornamental purposes rather than as a distinctive mark. Furthermore, while T-Mobile managed to demonstrate acquired distinctiveness through continuous use among 54% of Dutch consumers, it failed to do so for consumers in Belgium and Luxembourg. This is because the Uniform Benelux Trademark Law applies, requiring proof of “secondary meaning” across all three territories.
