Can you Trademark a Colour in Australia?
In Australia, a Trademark grants the exclusive rights to use a unique sign, brand or name, for goods and services, in accordance with Trademarks Act 1995 (Cth). Under Trademark law in NSW, a ‘unique sign’ goes as far as to include colours. Trademark law protects a colour and/or a combination of colours. However, since many businesses share and are associated with the same colour, it can be difficult to successfully trademark a colour for your business.
Legal Requirements for Registering a Colour Trademark
In all cases, the Trademark will only be registerable if, taken wholly, is capable of clearly distinguishing the applicants’ goods and/or services from those of other businesses. Any doubt may hinder or reduce a businesses chances of Trademarking a colour.
Famous Examples of Colour Trademarks
Cadbury purple is a famous example of a colour trademark, where the trademark protects the specific shade of purple packaging on chocolate products that have become distinctively recognised over the past 100 years. To achieve this, Cadbury successfully argued its acquired distinctiveness in UK courts.
Challenges in Protecting Colour Trademarks
1. Proving Distinctiveness
You must show the colour alone identifies your brand. This usually requires long-term, exclusive use and strong consumer recognition.
2. Limited Colour Availability
Colours are finite. IP Australia is cautious about granting monopolies that restrict competitors’ use of common or functional colours.
3. Consistent Use
The colour must be used consistently across branding and marketing to maintain its distinctiveness and legal protection.
4. Opposition from Competitors
Competitors can challenge your application, arguing the colour isn’t distinctive or is necessary for industry use (Nestle v Cadbury).
5. Maintaining Registration
Ongoing, consistent use is required. If you stop using the colour or alter it, your registration may lapse or weaken.
How Courts Have Treated Colour Trademarks
Australian courts generally take a restrictive approach to the registration of colour trademarks. Cadbury UK Ltd v Darrell Lea Chocolate Shops Pty Ltd provided that while Cadbury extensively used the specific shade of purple, it did not prove that the public directly linked that colour with Cadbury. Other cases such as BP green, also reinforce the fact that colour trademarks are only enforced in exceptional circumstances.
Practical Considerations for Businesses
1. Assess Distinctiveness
Determine whether the colour has become clearly associated with your brand through long and exclusive use. Evidence such as marketing history and consumer recognition is essential.
2. Consider Alternatives
If colour distinctiveness is uncertain, consider registering a logo, word mark, or a colour–logo combination for stronger protection.
3. Prepare for Challenges
Colour trademarks often face opposition or require extensive evidence. Be ready for additional time, cost, and documentation.
How We Can Help
The process for registering a colour trademark is highly challenging and only successful in exceptional circumstances. If you want to determine whether your business is a strong candidate for a colour trademark or need assistance with the registration process, contact OpenLegal today at enquiries@openlegal.com.au or 1300 937 574 to arrange a free, confidential consultation and explore the best options moving forward.
Jordan Sing, Intern at OpenLegal
