(Publ. 14 DEC 2018) According to Swedish practice, a trademark registration in black and white should be considered to cover the trademark in all colours and colour combinations. This is the opposite of the EU practise. In the EU, instead, a registration applies only to the colour or colour combination that the trademark has in the registration. Black and white should be interpreted as black and white. In a Swedish case, where we at Groth & Co have represented the winning party, the Swedish Patent and Market Court (PMD) has ruled according to EU practice and have taken colour in to consideration when deciding regarding confusion between two trademarks.

The case is regarding two different trademark registrations for the Maltese Cross – an eight-piece cross with arms that meet in the centre, and can be seen in the flag of Malta. In September 2014, we assisted the Lazarus Order with a trademark application in Sweden for its cross in green colour. The Swedish Patent and Trademark Office (PRV) granted the application and the trademark was registered. However, a few months earlier, the Johanniter Order had applied for trademark registration of their variant of the cross in black and white. The Johanniter Order filed an opposition against PRV’s decision to grant the Lazarus Order’s trademark application, with the intention of having it revoked.

In the opposition case, PRV initially decided in the favour of the Johanniter Order and revoked the Lazarus Order’s trademark. We appealed the decision at the Patent and Market Court (PMD) and we were successful. PMD opposed PRV’s decision and the Lazarus Order trademark registration was to remain as registered.

This decision from PMD for the first time indicates an adaptation to EU practice regarding colours of trademarks in Sweden. PMD states in its decision that the figurative marks are of a simple nature and that an average consumer is unaware of the meaning of the Maltese cross. The green colour of the Lazarus Order’ registration was therefore sufficient and crucial to rule out the confusion between the trademarks.