Have you ever wondered if you could trademark a colour for your business?
To conceptualise this, imagine an unique Australian clothing brand has entered the market. A specific registered colour will help in public identification against other businesses of the same nature. However, registering trademarks can be quite complex, and colours aren’t always sufficiently unique to be eligible for protection. Read this guide to find out how to trademark a colour.
Benefits of Trademarking a Colour
A colour or a combination of colours fall within the category of a sign subject to Trade Marks Act 1995 (Cth). For example, registering a colour for your brand packaging is trademarking a colour.
In essence, there are three main benefits to trademarking a colour:
- Reduction of competitors using your colours on other products
- Make your good and/or service more distinctive
- Increase brand awareness
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Trademarking a colour seeks to restrict or limit the usage of the registered colour. For instance, Cadbury was successful in its application to use purple colours in relation to their “milk chocolate” goods. However, Darrell Lea also used similar shades of purple for their chocolate packaging. Cadbury Schweppes attempted to sue Darrell Lea for the use of the colour purple. The courts found that Darrell Lea was not using the purple colour as a trademark but only for packaging purposes. Therefore, this did not amount to a breach in Cadbury’s trademark registration. For further information, the IP Australia Manual can be of use.
Process of Colour Trademarks
It’s important to understand that the process is not easy. Your business must support its use by sufficient evidence. Further, you need to nominate how this form of intellectual property is to be used. For example, a registration will consist of evidence that the general public has identified the colour with your delivery services. Moreover, single colour trademarks are considered more difficult to obtain than trademarks which consists of two or more colours. Research is needed to determine whether the colour that you intend to register can be used in a functional manner.
The process to trademark a colour follows the same process as trademarking a logo or business name. But, the application requires three types of supporting evidence. First, the public must be able to identify the colour with your services. Second, the colour in question must be capable of distinguishing your business from other businesses. Third, the trademark must fit within the legal definition of a trademark pursuant to Trade Marks Act 1995 (Cth). Therefore, it is recommended that you consult a lawyer prior to registration.
Using your Colour Trademark
Once your trademark application is successful, it is crucial that you know when and how to use your colour trademark to avoid legal liability. As a business owner, you will need to be aware that the ability to trademark a colour does not give you complete rights. Therefore, colour trademarks will only give you rights to use the colour in relation to your particular nominated conduct of business. For instance, another business can seek to apply for a trademark of the same colour for their goods and services if it can be proven that the conduct of dealing is different to your nominated colour trademark.
Due to the complexity of registering a colour trademark, the exclusive rights to use the colour is only valid in Australia. This means that you do not have any cause for legal action if an American business also uses that same colour.
Final Thoughts
In summary, you can trademark a colour. However, there are certain limitations and additional steps which you must take in order to have a successful colour trademark application. If you are unable to obtain a colour trademark, you may be able to protect your intellectual property in other ways by speaking to a trademark lawyer.
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