Protection of Color as a Trademark

The paper analyzes the legal regime for protecting color as an independent trademark (color per se) in the Russian Federation. The author examines whether an abstract color, detached from a specific form, corresponds to the core functions of a trademark — individualization, information, advertising, and reputation — and concludes that color symbols do not fully satisfy those functions. The study highlights problems in the current approach to color registration, including the high evidentiary threshold for proving acquired distinctiveness, the creation of unequal conditions for applicants, and the real risk of monopolizing elements of public design, a concern often framed as the «theory of color exhaustion». Both Russian and comparative foreign practice are reviewed to assess how protection for color trademarks is afforded in different jurisdictions. The analysis identifies doctrinal and practical obstacles that may preclude protection — most notably the doctrine of functionality and other features that render color inherently unsuitable for exclusive rights in certain contexts. The author argues for the necessity of specific legislative regulation of color designations. To that end, the paper proposes a set of measures to form a coherent legal framework for protecting color as a trademark. Proposed measures include establishing a presumption against distinctiveness for color per se, conditioning protection on clearly defined specific uses, and introducing a limited duration for the exclusive right. These safeguards aim to ensure that the legal institution of color trademarks functions as an instrument for protecting genuinely unique visual identifiers, while minimizing the risk of undue appropriation of public design elements.

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