A Study on the Protection of Color Marks: Focused on the requirement of distinctiveness and functionality

A trademark which comprises a single color or a combination of colors has become the subject of registration in Korea since 2007. Color marks is recognized as one of the non-traditional mark. The concern that a color can be monopolized due to the effect of trademark protection and no one else use the mark results in the fact that there are still only a few examples of trademark registration of color marks. It can be said that it is important to establish the standard for protection under what conditions prescribes the protection of color marks. In particular, the question of distinctiveness, which is a basic requirement for trademark protection, it is considered that colors cannot be inherently distinctive in principle, and must be acquired secondary meaning through use. It is difficult to assume that colors are used alone, and there is a difficulty in that colors should be regarded as having independent discrimination when used together with letters and/or symbols. A consumer survey can be an effective for measuring acquired distinctiveness, but must be taken to ensure reliable results. Functionality doctrine is also important requirements for color marks protection, and not only traditional utilitarian functionality but also aesthetic functionality needs to be reviewed.