On its website the UK IPO has now published a new Tribunal Practice Notice (TPN 1/2014) concerning the relevance of colour to a mark registered in black and white but used extensively in a particular colour or colours.  As the long title already suggests, this new TPN has been prompted by the CJEU's decision in Case C-252/12 otherwise known as Specsavers International Healthcare Limited and Others v Asda Stores Limited.  Details of how the UK IPO will apply the CJEU's guidance in its practice can be found here.

Most notably TPN 1/2014 states that in "... the Registrar’s view, the CJEU's judgment does NOT mean that colour should be taken into account where the earlier mark has been registered in black and white but either i) has not been used or ii) has been used in colour(s), but the extent and consistency of such use is not such that the colour(s) formed part of the distinctive character of the earlier mark at the relevant date. In these circumstances, colour will be regarded as irrelevant. Only the marks on the register, or proposed to be added to the register, will be compared." [emphasis in the original].