BP has been trying since 2002 to get its shade of green
(Pantone 348C to be precise) registered as a trade mark in
Australia. The Trade Marks Office has just knocked it back again.
Which begs the question – when can you register a colour as a
It may seem a bit weird, but trade mark registration is indeed
available for more than just words and logos – shapes,
smells, sounds, movements and, yes, colours can also be registered.
A trade mark is a symbol distinguishing a particular business or
its product, and that can include all sorts of
Of course, things other than words or pictures are much harder
to register, simply because it's a lot more difficult for them
to attain the necessary distinctiveness. But it's possible. For
example, the windscreen company O'Brien has had its annoying
jingle "Oh-Oh-Oh-O'Brien" registered as a sound mark.
The classic Coke bottle outline is registered as a shape mark, as
is the Toblerone triangle-shaped box.
Colour marks are relatively rare. Australia Post has both red
and yellow registered for its services, Kraft has silver for its
cream cheese, Christian Louboutin also has red for the soles of its
women's shoes and a company called Fada has red too for the wax
tips on its banana. Purple is also popular, being registered by
both Cadburys for chocolate and Whiskas for cat food. Registration
of a colour doesn't mean you own that colour or can prevent
anyone else using it generally, but it does give protection in
respect of the particular goods in respect of which you've
registered it. Mind you, Cadburys tried long and hard to prevent
Darrell Lea from selling chocolate in purple wrappers, and lost. So
just how much protection you can really get is debatable.
BP is very attached to its green. We'd all readily identify
that as its colour. However, Woolworths objected violently to the
registration, and so far it's succeeded. Why would Woolies
care? Possibly because it has spent a fortune in recent years
rebranding to the same shade of green that BP uses, and perhaps
because in the back of its mind there's a long term play
relating to its close affiliation with Caltex in the petrol
retailing space, and it wouldn't want to be shut out from
branding all those petrol stations with the Woolies green apple.
Just speculating, mind.
Practical advice? Applying for a colour trade mark is just as
cheap as any other kind, so have a crack by all means if you've
been using the same colour for 30 years or so. But on the
enforcement side, don't expect miracles. Getting a colour
registered isn't the pot of gold at the end of the rainbow
(insert stupid pun here).
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