Australian courts have recently considered the registrability of single-colour trade marks.
Mars recently applied for trade mark registration for a single colour, referred to in the evidence as Whiskas Purple, in respect of "foodstuffs for cats and kittens and additives for such foods". In Mars Australia Pty Ltd v Société des Produits Nestlé SA [2010] FCA 639, Justice Bennett directed that the application should proceed to registration. Accepting that Mars had provided: "extensive evidence of the marketing of Whiskas Purple and of its use, which have served to establish the trade mark significance of the Whiskas Purple colour in the minds of consumers and the association between that colour and the Whiskas range of products."
Her Honour also found that: "Further, there had been no previous use by Mars of such a colour. Mars had previously used blue on the packaging of Whiskas products. It adopted an entirely new colour as a trade mark and promoted it heavily from the outset with, as the evidence establishes, the clear intention of giving the colour a trade mark significance. The Act accepts (sections 17 and 6 of the Act) and the evidence establishes that a colour can function as a trade mark. Mars adduced expert evidence which supports its contention that Whiskas Purple functioned in this way at the priority date."
The case represents a significant broadening of the usage of color as a trade mark.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
