Australia: Colour trade marks

A trade mark is considered to be a way for consumers to identify a particular good or service, typically known as a "brand". Whilst most consumers are likely to readily identify a trade mark which is in the form of a logo, it is important to note that a trade mark can also take other forms, such as a letter, number, word, phrase, sound, smell, shape, movement, aspect of packaging, or even a colour. A colour can function "as a trade mark" where the public has come to identify the colour with a business' goods or services.

Colour trade mark application

A colour trade mark application in Australia can be made over a specific colour, or a combination of colours. If an applicant does wish to obtain a colour trade mark registration, they must be able to provide evidence that:

  1. the public has come to identify the colour the applicant is applying to register as a trade mark as synonymous with a particular good or service;
  2. the colour alone is capable of distinguishing the goods or services of the applicant; and
  3. the colour the applicant is applying to register as a trade mark is actually a "trade mark" and not just part of the goods or their packaging.

An Australian colour trade mark registration, if obtained, provides the applicant with the right to use that particular shade of colour or colour combination applied for, exclusively in Australia, but only in relation to particular nominated goods and/or services.

IP Australia ('Trade Marks Office') indicates that the following, however, cannot be protected by a colour trade mark registration:

'A functional colour, or combination of colours, cannot be trade marked. In other words, if a company sells turf, they couldn't register the colour green because green is the colour of grass and is therefore functional. Similarly, you're unable to register colours that convey a generally accepted meaning, for example, it would be difficult to trade mark a combination of red and orange because those colours are synonymous with safety signs and hazard warnings.'

The application process to obtain a colour trade mark registration is therefore complex, and for an application to be successful, usually requires the applicant to be able to demonstrate sufficient (and usually of a significant amount) evidence of use of the particular shade of colour or combination of colours that they are claiming distinguish their goods and/or services.

Thus, single colour trademarks may be more difficult to obtain on the basis that it is considered easier for consumers to distinguish colour trade marks which consist of two or more colours. In addition, the Trade Marks office is inherently reluctant to provide registrations over single colour trade marks as the market for those colours is more finite than those of multiple colours, and the monopoly to be gained is significantly greater.

It is also worth noting that a colour trade mark registration is restricted in certain aspects of the protection it grants to the owner. A colour trade mark registration only provides the owner with the rights to use that specific colour and/or colours in in relation to the goods and services claimed. Accordingly, a third party could seek to apply for a colour trade mark registration of the exact same colour, or a similar shade of colour, for goods or services that are considered to be sufficiently different from those that the registration relates to, and if they are able to show the requisite amount of distinguishability and use, they could be successful in obtaining a colour trade mark registration.

Examples of Colour Trade Marks:

Some examples of colour trade mark registrations which have been obtained in Australia are as follows:

  • In 2006, Cadbury was successful in obtaining colour trade mark registrations for the purple colours it uses in relation to the following goods "milk chocolate in bar and tablet form, milk chocolate for eating, drinking chocolate, and preparations for making drinking chocolate." However, in 2009, litigation ensued between Darrell Lea and Cadbury Schweppes over Darrell Lea's use of similar shades of purple used in relation to their chocolates. Notably, Cadbury's infringement claims of Darrell Lea using a shade of purple in connection with its chocolate products was not brought under the Trade Marks Act, but pursuant to contravention of sections 52 and 53(c) and (d) of the Trade Practices Act together with the tort of passing off and also misleading and deceptive conduct. Whilst it was considered that consumers were likely to confuse the products of the two chocolate companies pursuant to their use of the similar shade of purple, the Federal Court was unable to find that Darrell Lea's conduct was able to amount to misleading or deceptive in circumstances where Cadbury's brand name was used prominently, and therefore, Darrell Lea was not using purple as a trade mark, but merely for packaging purposes. This case concluded by Darrell Lea and Cadbury reaching an out of court settlement to these proceedings.
  • Another example of a colour trade mark registration is Tiffany & Co jewellers which has successfully registered their synonymous 'tiffany blue' as a trade mark in relation to jewellery and packaging. Tiffany have sought to assert their intellectual property rights in relation to counterfeit goods which utilise the colour, the subject of their trade mark registration, most notably with litigation against department store Costco in the United States in 2017 in relation to the sale of, as claimed by Tiffany & Co, counterfeit Tiffany & Co goods.

Whilst colour trade marks are a valuable tool, and lots of brands utilise a certain colour or colours to convey their branding to consumers, obtaining a colour trade mark registration may be difficult unless evidence of use can demonstrate to the Trade Marks Office that the goods and services relating to the trade mark are synonymous with the colour being applied for and that the colour is able and is being used to distinguish the goods and services of the applicant.

If, however, the applicant is unable to obtain a colour trade mark registration, there may be other causes of action available for the applicant if copying occurs, such as the common law tort of passing off and/or misleading and deceptive conduct or making other false representations under the Competition and Consumer Act 2010 (Cth).

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.

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