Distinctive colours have become synonymous with the brands they represent; many brands rely on a colour, or a set of colours, as a key factor in their instant recognition, including red for Coca-Cola and Qantas, blue for Facebook, and red and yellow for Surf Life Saving Australia and Vegemite. The question is - can you legally own, or trade mark, these recognisable colours?
What can be protected?
A specific shade of colour, or combination of colours, can be registered as a trade mark. However, the process of registration can be difficult and requires significant evidence of use, particularly for single colours. When applying to trade mark a colour, there needs to be evidence that:
- the public has come to identify that colour as synonymous with a particular good or service (unless it's a particularly distinct colour combination and pattern)
- the colour alone is capable of distinguishing the good or service
- the colour is the trade mark – not part of the goods or their packaging
Once granted, a colour trade mark is restricted in several ways. The mark only relates to a specific shade of colour (typically identified on the Pantone scale), and is limited to a specific group of products or services (see the classes of goods and services). That means that the same shade, or one that is very similar, could be used by another company whose products or services are sufficiently different.
Having a colour mark doesn’t give the user the right to own the colour more generally – people can still paint their house a protected shade of blue or dye their hair a certain shade of pink.
What can’t be protected?
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.
Single colours are inherently harder to trade mark than a combination of colours, simply because it’s difficult to prove that one colour distinguishes a particular brand over another.
The case of Cadbury purple
Cadbury has famously battled over its right to monopolise the colour purple for chocolate products. Cadbury has used a particular shade of purple to package a range of products for over 100 years and believes the colour alone distinguishes its milk chocolate.
Cadbury has successfully trade marked Pantone 2685C in Australia and while the colour mark does not give Cadbury general ownership over all uses of that particular shade of purple, it does allow them to prevent competitors from using that shade, or a confusingly similar shade, for the packaging of their chocolate products.
If you’re thinking about trade marking a colour
Remember that colour marks are relatively rare and it is very difficult to register a single colour. In most cases, a colour mark is only registered once an applicant has proven that the colour alone distinguishes its products from those of other traders.
Find out more about the different types of trade marks, including: sound; movement; shape; and scent. If you would like us to write a blog post about a different type of trade mark – let us know in the comments below.