The Battle Over Green: Colour Trademarks In Australia

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Table of Contents

• Colour Trademarks and Packaging
• Registering Colour Trademarks
• Whiskas Purple
• Key Takeaways

You may have recently heard about the legal battle between the makers of the energy drink V and The Coca-Cola Company to secure ownership of the colour green. The Coca-Cola Company opposed an application by Frucor Beverages who attempted to trademark a green shade called Pantone 376C. This colour shade is used on V packaging. Frucor Beverages were trying to obtain the exclusive right to use the colour with energy drinks. The Coca-Cola Company objected because the colour did not distinguish the V product and that they had their variety of the Mother energy drinks called Green Storm. This article explores the requirements for successfully registering colour trademarks and some of the reasons why registration is often difficult to secure.

Colour Trademarks and Packaging

While it is possible to register the colour of packaging as a trademark, it is often not easy and you will have to show that the public has come to identify your goods and services with that colour.

To support its case, Frucor Beverages provided the Australian Trade Mark Office with a survey which tested whether people associated the colour shade with V over other beverage manufacturers which adopt a similar colour. 48 per cent of the participants selected V, followed by 10 percent which associated the colour with Sprite and 9 per cent with Gatorade.

However, Frucor Beverages could not convince the Australian Trade Mark office that their V product was exclusively related to the colour. The matter will be heard in the Federal Court this month as Frucor Beverages have appealed the decision.

Registering Colour Trademarks

As general principle, colours used within a particular trade do not indicate a single source. They do not serve to distinguish the goods and services between traders.

Rather, colour combination are more likely to distinguish between goods and services and are somewhat easier to register. An example of a colour combination is the red and yellow flags which are used by Surf Life Saving Australia.

In situations where a colour is considered functional, it is also difficult to obtain exclusive ownership of that colour. Some examples of functional colours include:

• The natural colour of a product;
• Colours which convey a particular meaning (e.g. red for a hazard warning sign); and
• Colours which provide a technical result (e.g. using the colour white or silver instead of black for a product that requires heat reflection)

Whiskas Purple

The legal battle over colour trademarks is certainly not novel. Another prominent example is the case of Mars Australia Pty Ltd v Société des Produits Nestlé SA [2010] which concerned a dispute over the colour ‘Whiskas Purple’.

Mars applied to register Whiskas Purple as a trademark and Nestle successfully opposed their application. Similar to Frucor Beverages, Mars sought to have the decision overturned in the Federal Court and were ultimately successful.

Some factors which the court found in favour of Mars include:

• Mars created the Whiskas Purple colour from scratch;
• Mars provided substantial evidence of their use of the mark in Australia, dating back to 2001;
• the colour and its connection with the product was extensively promoted and was carefully developed to create stronger brand equity; and
• Whiskas Purple used on the packaging of all Whiskas products.

Key Takeaways

Colour trademark applications have been the subject of numerous lengthy disputes between large corporations. Colour trademark disputes serve to remind us on the importance of a business’ branding. It will certainly be interesting to see the outcome of the latest colour trade mark battle in the coming months. If you have a question about registering a trademark, get in touch with LegalVision. Call us on 1300 544 755 or fill out the form on this page.