How to Trade Mark Colours, Scents, Sounds and Shapes

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Table of Contents

• Aspects of Packaging (Shapes)
• Colour Trade Marks
• Sound Trade Marks
• Scent Trade Marks
• Key Takeaways

A trade mark is a sign that is used, or intended to be used, to distinguish your goods and services from another trader. Trade marks are best known as brand names or logos associated with a business’ branding. However, in addition to brand names and logos, the following are also considered trade marks in Australia:

1. Aspects of packaging (shapes);
2. Colours;
3. Sounds; and  
4. Scents.

In this article, we explore these different types of trade marks and when businesses should apply for trade mark protection.

Aspects of Packaging (Shapes)

As a general rule, particular aspects of packaging or even some parts of a product itself may constitute a trade mark. For example, a crest on the seal of an alcohol bottle’s neck has been regarded as a trade mark as it was unusual and distinctive of the particular goods. However, you cannot obtain a shape trade mark for shapes which are already in common use and are required during the normal course of trade, for example, a shoe box. Here are a few examples of shape trade marks in Australia:

• The Rubiks Cube (reg no 707482);
• The triangular box shape of Toblerone chocolate (reg no 706797);
• The shape of a perfume bottle (reg no 627798); and
• The semi-spherical shape of a Kettle barbeque (reg no 7036222).

To succeed with an application for a shape trade mark, you must satisfy the following two requirements:

1. The shape distinguishes your goods and services; and
2. Your shape does not already exist in the marketplace.

It is important to note that a shape trade mark differs from a design as it may already exist in the market place before it is registered. One of the requirements for registering a design is that it must be new and distinctive. This means that if you have publicly disclosed your design you will not be able to obtain design protection.

Colour Trade Marks

A trade mark owner must establish that the public has come to identify a colour with their particular goods and services. As such, it’s often difficult for businesses to obtain a colour trade mark. Examples of colour trade marks in Australia include:

• Cadbury’s purple for block and boxed chocolate (reg no 1120614);
• Orange for personal communication technology (reg no 820452);
• Orange for sparkling wine (reg no 704779); and
• Sky blue for electrical tools (reg no 585856).

Sound Trade Marks

Sound trade marks give you protection to sounds in relation to your goods or services. When you submit an application for a sound trade mark, you are required to include a sound file for the trade mark examiner. Numerous businesses have registered a sound trade mark, often in combination with words. For example, McCain Foods Pty Ltd has registered their high pitched “ping” of a microwave when used with “Ah McCain, (“Ping”) You’ve Done it Again”. Here are a few examples of sound trade marks in Australia:

• Kraft’s “Happy Little Vegemites” tune (reg no 941362);
• The traditional musical start to Twentieth Century Fox movies (reg no 891830);
• The Boost juice sound trade mark (reg no 1062639); and
• The sound of “Greensleeves” for Mr Whippy ice cream (reg no 876931).

Scent Trade Marks

Registering a scent as a trade mark is difficult. A scent to qualify as a trade mark in Australia must be unusual and distinctive and associated with a particular good or provision of service. In your application, you must explain in a concise written description how the scent will be applied. An example of a scent trade mark is the eucalyptus scent for golf tees (reg no 1241420). IP Australia has rejected the following scent trade marks as they have failed to meet this test:

• The scent of musk for perfume (reg no 727820);
• A eucalyptus scent for laundry detergent (reg no 762286); and
• The scent of coffee for a suntan lotion (reg no 821444).

Key Takeaways

If you are thinking of registering a trade mark for your business, it is useful to consider whether these forms of trade marks apply and are relevant for your business. While protecting your brand name and logo is incredibly important, you may also need to protect other forms of trade marks. Your intellectual property is a valuable asset for your business and having the right protections in place can set you up for long-term success.

If you would like assistance regarding trademark applications or have any further questions, get in touch with our trade mark team on 1300 544 755 or fill out the form on this page.