The do’s and don’ts of trade marking colours

Find out how you have to be careful when trade marking a colour based on V’s recent failure to apply for trade marking the colour green.

Frucor Beverages Limited (Frucor), the manufacturer of the energy drink, V, was recently in a legal battle with Coca-Cola Company, which successfully blocked Frucor from applying to trade mark a specific colour green. Coca-Cola Company got involved so that it could not be prevented from using a similar shade of green for its Mother energy drinks.

Ask yourself the following questions if you're trying to get a trade mark for a colour to avoid falling into the same legal traps as Frucor did:

Is it competitive and innovative?

Prove that the colour is strongly associated with your brand.

IP Australia states that colour may be an aspect of packaging which can be trade marked. However, if it is not particularly innovative then it is less likely to be successful in securing a trade mark. This is why Coca-Cola was able to object to V's use of the colour green, with the justification that the colour did not differentiate V because other soft drinks already have similar colours. 

IP Australia explains that a trade mark is a means of making your product or service identifiable and distinguishable from other companies. This way, customers can call to mind the quality of your brand and determine its value in comparison to other traders.

Frucor tried to prove that the colour green is strongly associated with their brand through a survey. When respondents were asked which soft drink they associated with the colour, 48 per cent said V. But Coca-Cola successfully challenged Frucor on this claim, too, saying that green is not enough to distinguish Frucor's drinks and thus cannot be deemed a competitive colour.

Make sure the colours you have used for the drink have a long and extensive history of use.Make sure the colours you describe in the application are very specific.

Were you specific enough in describing the colour?

Specificity and clear examples are a must in your application. Coca-Cola argued that Frucor's initial application was "fatally flawed" because they did not show the exact colour of the product.

The Australian Trade Marks office agreed with Coca-Cola that the green example provided in the application was in fact a different colour to Pantone 376c Green (the colour Fructor desired to trade mark) and was therefore ambiguously defined.

Advice from Alder IP, a law firm known in Australia for having outstanding trade mark attorneys, could help you avoid making yourself vulnerable to legal attacks like V has done. Make sure that you can prove that your colour is competitive, innovative and, above all, don't make the mistake of not describing the shade accurately. After all, it is a lot of trouble to go through for a single colour, but it will ultimately be worth it if you can gain protection for a distinctive colour that is a defining feature of your product.