“So then I took my turn / Oh, what a thing to have done / And it was all yellow”
The colour yellow PANTONE 123 C cannot be registered as a trade mark due to its lack of inherent distinctiveness for dating applications, the specification of the wording as to the person initiating the interactions being irrelevant.
In accordance with Article 7(1)(b) EUTMR, the Board of Appeal recalls that a colour can only be considered inherently distinctive in exceptional circumstances, namely when it is unusual or striking and designates a very restricted number of goods and services in a specific market.
After the initial refusal of its trade mark application, Bumble limited the wording of the goods and services designated. It considered that, as (i) the target public was very limited, (ii) the colour was clearly defined and accompanied by a Pantone reference, and (iii) it was used prominently (unlike its main competitors), the colour could exceptionally be qualified as distinctive.
In its decision dated 9 January 2023 (R 1083/2022-1), the Board rejected these arguments, finding that the colour yellow, because of its eye-catching character, is frequently used in sector of software applications, making it a basic colour for this category of goods. It also noted several other dating applications using a prominent yellow colour, regardless of the fact that these applications did not exist at the launch of the Bumble application.