By two judgments T-404/09 and T-405/09 rendered on November 12, 2010, in line with well-established case law, the General Court confirmed the criteria applied for the assessment of distinctive character of colour trademarks is the same in respect of products and services on the grounds of Article 7 (1) (b) CTMR. It rejected Applicant’s argument that the supply of services implies use of immaterial means which necessarily bear a colour. Colour trademarks can be registered if they don’t have a common character or fulfil other immediate functions (see Judgment T-173/00 ‘Nuance d’orange’).
In the present case, the two colours lack distinctiveness individually and their combination doesn't present any perceptible difference from the colours commonly used for railroad services. As noted by the Board Appeal, the light grey is commonly used for technical equipment necessary for providing these services, for example the wagons, locomotive engines and control commands along the rails. Furthermore, light grey can be perceived as dirty white. Red is the colour used for warning on road signs and allows to catch the consumer’s attention in advertising messages. The combination of white (as in dirty white) and red is representative of the signalling of caution on railroads signs and train crossing gates; lengthwise red stripes are common elements on trains or to separate the platform from the rails. Therefore, taken as a whole, this combination of colours will only be considered functional or as a decorative element and not as an indication of origin of the services.