Blue is the colour of porous milk chocolate from Orkla

On 30 June 2025, KFIR issued a noteworthy decision reversing the NIPO's refusal to register the colour Pantone 2144 C –commonly  referred to as "Stratos Blue" – as a trademark for porous milk chocolate. The decision clarifies the approach to assessing whether a single colour may acquire distinctiveness in the eyes of consumers, providing guidance on the interplay between the need to keep certain signs freely available (in Norwegian: "friholdelsesbehovet") and the doctrine of "acquired distinctiveness" in Norwegian trademark law.

Orkla Confectionery & Snacks Norge AS ("Orkla") originally sought registration for a colour mark described as a "Nyanse av blå. Pantone 2144 C", limited to "porous milk chocolate" following an amendment to the list of goods. The NIPO refused the application on 28 November 2024, concluding that the colour lacked inherent distinctiveness and was not proven to have acquired distinctiveness through use.

In particular, the NIPO found that:

• The colour was a commonly used shade of blue, insufficient on its own to serve as a commercial origin indicator.
   
• A strong need to keep certain signs freely available exists for basic, single colours in the confectionery market, including blue, given that colour can play a major role in attracting consumer attention.
   

Orkla appealed this decision, submitting additional evidence such as updated advertising figures, market share data, and a market survey (the "Niedermann report") designed to show that Pantone 2144 C had, in fact, acquired distinctiveness – meaning that a significant portion of the relevant public associates the colour with Orkla’s Stratos brand.

No Inherent Distinctiveness
KFIR endorsed the NIPO's view that Pantone 2144 C does not inherently distinguish Orkla’s product from those of other producers. This was consistent with the principle that single-colour marks typically lack inherent distinctiveness absent exceptional circumstances.

Acquired Distinctiveness Through Use
The central question thus became whether Pantone 2144 C had acquired ("slitt seg til") distinctiveness through extensive, long-term use for porous milk chocolate.

Role of the need to keep certain signs freely available
While KFIR acknowledged that colour marks typically present a strong need to keep certain signs freely available, KFIR concluded that, if solid evidence shows consumers perceive the colour as indicating a single commercial source, the legal requirement for distinctiveness is satisfied despite any general interest in keeping basic colours freely available.

Key Evidence: The Market Survey

KFIR placed substantial weight on a market survey, the Niedermann report, demonstrating that more than 70% of respondents linked Pantone 2144 C specifically to Orkla’s Stratos brand. This survey – carried out via a systematic "three-step methodology" ("tretrinnstest") – was deemed methodologically sound and probative in showing that relevant consumers perceive the blue shade as an indicator of origin for porous milk chocolate.

Decision and Implications

KFIR ultimately found that Orkla’s colour mark had indeed acquired distinctiveness in the marketplace by virtue of extensive, nationwide use spanning several decades. As a result, KFIR overturned the NIPO's refusal and allowed the mark to proceed to registration for porous milk chocolate. The decision underlines how intensive marketing efforts, combined with robust survey evidence, can overcome an initially high barrier to registering single-colour marks in Norway.

This ruling carries the following important lessons for trademark practitioners:

1. Survey Evidence is Crucial: The reliability and structure of a market survey can make or break an acquired distinctiveness claim.
    
2. High Bar for Single-Colour Marks: Although single colours face inherent challenges due to the need to keep certain signs freely available, a sustained, targeted marketing campaign – reinforced by credible evidence – may still establish trademark rights.
    
3. Comprehensive Approach: KFIR assessed market share, advertising spending, product recognition, and how consumers specifically link the colour to the brand, demonstrating that securing protection for colour marks demands detailed and multifaceted documentation.
    

Given this decision, trademark owners seeking exclusive rights in single colours – particularly in consumer goods sectors – can take guidance from KFIR’s methodology. Substantial and well-documented evidence that a colour serves as a badge of origin remains paramount, even when the starting position is an arguably "commonplace" hue.

KFIR's decision follows in the same path as Oslo District Court's judgment dated 7 June 2024 in the case between Orkla and Mondelez concerning the same colour mark. It will be interesting to see the general effect of the decision with respect to colour marks. 

KFIR's decision is well-written and provides a solid basis for future evaluations of the distinctiveness of colour marks. However, the scope of protection should be considered as limited and not as covering chocolate that is not "porous".

Disclaimer: This article provides a brief summary of KFIR's decision in case 25/00013, dated 30 June 2025. It does not constitute legal advice. For specific questions on colour marks, please contact us for qualified legal advice.