Claiming the Color of a Trademark

Posted by: Francisco Jose Alvarado | Senior Associate at Alvarado y Asociados

An aspect that is usually forgotten when registering a trademark and protecting it, is precisely the color of it. Determining the color of the trademark is perhaps one of the most important decisions at the time of creation and later becomes the base of the advertisement of the company or product that it represents, included in publications on social networks, business cards, colors used in official documentations etc. Given the above, if the color is really special, distinctive and is an element that you want to protect, you should know that our legislation through Law 380 “Law of Trademarks and Other Distinctive Signs” provides in its article 3, that among the signs which can be considered a brand, colors are also included.

When a trademark application is submitted, you must consider the specific colors that characterize it, since by not doing so, your registration may be in vain.

Most countries, including Nicaragua, apply the rule that, when registering a trademark, the protection granted to the owner and the right to use it as a registered trademark, is limited to using the trademark exactly as it was registered. In that sense, at the time of requesting your registration you should consider two options: (i) Claim colors, that is, request specific color protection, if you choose this option you should know that as owner, if you use it by modifying any of the elements that compose it, it will no longer be considered as a registered trademark. Its protection will be limited to its use as it was registered and under the color or colors that were claimed, and you must consider that, if you present a color mark and do not claim colors, the Intellectual Property Registry will not do it automatically, it will not protect the colors, and you will not be able to modify your brand (ii) Do not claim colors, that is, your brand will be registered in black and white and as such you can use it in any color and will still be protected (iii) protect your mark in two different applications one black and white and in the other claiming colors.

When registering the brand in a specific color, the holder will have the right not only to prevent third parties from using the identical brand, but also other brands that may be considered similar for related products or services.

A simple variation in color, in most cases, will not make a brand distinctive enough in relation to another identical brand registered in different colors.

The options outlined above are highly used and have numerous benefits, the decision will be summarized to the use that you want to give it and the guidelines that you want to follow in terms of advertising and its use in general.

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