Registering a trademark gives your business exclusivity over that ‘mark’ in the public domain, and can include a business name, logo, slogan, mascot, a product or service name. Unknown by many is the fact that businesses are even able to trademark a colour.
Trademarking A Colour
Subject to the Trade Marks Act 1995 (Cth), your business is able to trademark a colour, or a combination of colours.
Many global companies which rely on recognisable colours as part of their marketing often trademark those colours. For example, no other soft drink brands are able to use the Coca Cola red. By trademarking their colours, companies will ensure that those colours are only synonymous with their own company.
If your business uses or is thinking of using a particular colour scheme as an integral part of your business plan, checking if certain colours are already trademarked is a good idea.
Trademarking a colour can have many benefits to your business, including:
- Increasing awareness of your brand
- Preventing other companies from using your colours
- Making your brand easily recognisable
Colour Trademark Examples
Trademarking a colour can be hugely difficult due to the common use of colours by many businesses. Using a colour trademark will limit the usage of a particular colour.
For a colour trademark to work, it must be shown that the use of a particular colour is clearly unique and commonly known to be associated with your business’ brand. It is more common for colour trademarks to exist with the international brands who have developed a strong association with a particular colour after many years.
As noted previously, Coca Cola have a registered trademark for their iconic shade of red, which precludes competitors from using the colour. It does not however, prevent other companies who are not competitors from using similar colours, as exemplified Target, the Australian owned retailer.
Another example of a colour trademark is with Cadbury, the British multinational confectionery company. After previous attempts, Cadbury successfully trademarked their famous purple, preventing other chocolate and cake ranges from using the colour.
Using a trademarked colour as part of your business’ identity may result in an infringement on another business’ IP right. To check whether a particular colour is already trademarked simply requires a quick search on google or IP Australia’s Trade Mark Register.
What Are The Risks?
Using a colour that is already used by another company under a registered trademark will initially lead to an infringement notice asking you to stop using their trademark.
In more serious cases it is possible that you are sent a cease and desist letter, which is a request from the trademark owner asking your business to stop using the trademark. Failing to comply will usually lead to the commencement of legal action. This may eventually lead to potentially very expensive court proceedings, all of which could have been avoided by undertaking research earlier in the process.
Beyond the financial and time consuming nature of court proceedings, a trademark dispute can have a significant impact on your business’ reputation and operations. It may lead to a complete rebranding of your company.
Rebranding can be very costly and time consuming, especially for businesses which are larger in size. It may also have implications for your client base, some of whom may not stay with you through the process.
Furthermore, your business may experience bad publicity, potentially losing the trust and confidence which had previously been instilled in your customer base.
Key Takeaway
It is important to understand that no matter what stage your business is at, trademarks are an important consideration. Seemingly insignificant features such as colours associated with your brand even require careful consideration when it comes to trademarking.
By taking a proactive approach through undertaking research and speaking to professionals, you will avoid potentially costly issues that may arise further down the track.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
