On 15th of April 2014 the trademark offices of the European Union have agreed on a common practice with regard to trademarks in B&W and/or greyscale. This new policy entered into force in 22 countries and OHIM on 15th of July 2014.
Priority claim requires an identical mark; however, a logo in B&W or greyscale from which priority claimed is not seen as identical to the same mark in colour. As well as an earlier mark in B&W or greyscale is not identical to the same mark in colour.
However, these two rules above have a common exception of insignificance. An insignificant difference between two marks is a difference that a reasonably observant consumer will perceive only upon side by side examination of the marks.
It was agreed that change only in colour does not alter the distinctive character of the trade mark, as long as the following requirements are met:
・ the word/figurative elements coincide and are the main distinctive elements;
・ the contrast of shades is respected;
・ colour or combination of colours does not possess distinctive character in itself; and
・ colour is not one of the main contributors to the overall distinctiveness of the mark.
It is important to note differences in the Baltic States. In Lithuania and Latvia the rules above are already applicable to all applications filed and all proceedings filed after the implementation date (1st of July 2014) where in Estonia new rules apply only to the applications filed after 1st of June 2014. However, Lithuania and Estonia do not assess genuine use.
These changes mean that applicants, filing their trademarks after 1st of June, should reconsider previous filing practice and, in most cases, the colour trademarks will be filed. Also, the old portfolio should be revised also. In some cases it may rise the filing and maintaining costs for the trademarks.