Judgment Lotus Bakeries. Doctrine developed regarding

the registrability of colour marks

On February 22, 2022, Lotus Bakeries filed an application with the European Union Intellectual Property Office (EUIPO) for the registration of an EU trademark in class 30 (Biscuits; Cakes; Confectionery; Fondants (confectionery); Gingerbread; Pastry (industrial); Speculoos (caramelised biscuits); Coffee; Chocolate; Waffles; Creamy ice creams; Ice cream; Chocolate; Chocolate Products.) to protect the following sign: 

After the corresponding exam, the examiner rejected the application on the grounds that the sign lacked distinctive character. 

Dissatisfied with the outcome, Lotus Bakeries filed an appeal, which was also dismissed on the grounds that red is a basic colour and white is a neutral colour that can easily be combined, and that this specific combination does not allow the consumer to identify a specific commercial origin. The colour red was also determined to be common in the market of cookies and related products, and that it suggests specific flavors or ingredients. 

The General Court of the EU validated the conclusions reached by the EUIPO in the judgment T-1096/23, emphasizing that, when assessing the distinctive character of a colour or a combination of colours, the general interest must be taken into account with regard to the availability of the existing colour palette, which is limited by nature, and which must not be unduly restricted for other operators in the same sector. 

Link to the resolution: click here

August 27, 2025