The European Trade Mark Offices except of Italy, France, Finland, Sweden, Denmark and Norway have agreed on a common practice of the scope of protection of black and white marks. Thereby, the very different practices of the single trade mark offices were harmonized.

By applying some judgments of the Court, three parts of the common practice were established:

1. The priority of a black and white mark or a mark in greyscales can only be claimed by a trade mark in colour if the differences in colour are so insignificant that a consumer will perceive this differences only upon side by side examination of the marks. In practice, this might be true for two marks in greyscales.
2. In case of an opposition, the challenged trade mark in colour is not identical to the earlier trade mark in black and white or in greyscales unless the differences in colour are so insignificant that a consumer will perceive this differences only upon side by side examination of the marks.
3. The use of a coloured mark for a registered trade mark in black and white or in greyscales is sufficient, if

• the word/figurative elements coincide and are the main distinctive elements,
• the contrast of shades is respected,
• the colour(s) do not possess distinctive character in themselves and
• colour is not one of the main contributors to the mark´s overall distinctiveness.