Mobile phone wars; Aussie colour mark

Nokia v Qualcomm

PR Newswire reports on a new twist in the Qualcomm/Nokia patent dispute. Nokia has filed suit in Germany and the Netherlands seeking a declaration that the patent rights concerning chipsets placed on the EU market under Qualcomm’s licence are exhausted. The chipsets are said to have been provided by Qualcomm to Texas Instruments.

The IPKat awaits the outcome with interest. Exhaustion of trade marks has attracted a lot of attention recently. It will be good to see the courts get their teeth into patent exhaustion too.


Are the Aussies green?

The IPKat thanks Lee Curtis (Pinsent Masons) for pointing out that BP is appealing to the Australian High Court against the Federal Court’s decision last year to refuse to order the registration of Pantone 348C – a green shade. Colours are in principle registration in Australia if they are distinctive and a number of companies have succeeded in obtaining colour registrations. BP’s lawyer, Darren Saltzman, noted:

"This is not removing the colour green from the marketplace as a trademark. It is a particular shade of green, applied in a particular way, in relation to particular goods and services. If you wanted to colour your chocolate shop green, I don't think it would concern BP".

The IPKat says that Mr Saltzman’s comments lifts the lid off a can of worms that has been bothering him for some time. It’s all very well to get your colour trade mark, but how much protection to you get once you have it? For example, do you get protection against similar shades? If you do, this threatens a colour monopoly. If you don’t then can consumers with imperfect recollection really store a precise image of your shade in their minds? Likewise, it’s all very well Mr Saltzman saying that he doesn’t ‘think’ BP will be bothered by use on dissimilar products, but what about dilution protection? Can precise shades of colours ever become famous enough to qualify? The colours have shown a tendency to give greater dilution protection to distinctive marks – can colours ever become distinctive enough? Moreover, how does one harm a colour’s distinctiveness? By using a similar shade? If so then we’d be enjoining use of a range of shades of a colour over similar and dissimilar goods. Smells like a monopoly to the IPKat.