OHIM has published revised examination guidelines relating to marks that have been filed in black and white or in greyscale. The new version of the guidelines puts into practice the approach agreed by the European Trade Mark and Design Network following the ECJ's judgment in Specsavers v Asda (Case C-252/12, reported in Legal update, ECJ rules on use of trade mark combinations and colours). For details of the agreed approach, see Legal update, European Trade Mark and Design Network issues communication on black and white marks.

As far as relative grounds and proof of use are concerned, existing practice will not change, but the new approach does have an impact on the assessment of priority claims. Previously, OHIM would deny priority if there was any difference in the appearance of the marks, including presentation in differing colours. As of 2 June 2014 when the new guidelines came into effect, the scope of what is considered "identity" will be broader. A trade mark filed in black and white and/or greyscale, from which priority is claimed, will generally still not be considered identical to the same mark filed in colour. However, if the differences in colour or in the greyscale are so insignificant that they could go unnoticed by the average consumer, the marks will be considered identical.

Source: OHIM news item, 2 June 2014.