4 Tips to Exclusively Obtain the Right to Trade Mark a Colour
Angus
As a business owner, it is common to wish to preserve your unique brand for a product or service that might benefit or otherwise enhance society. Indeed, you may want to exclusively obtain the right to trade mark a colour and ensure that competitors cannot claim your brand as their own to benefit from your already established reputation. Likewise, you may have a strong vision for your brand and wish to see it realised. In order to achieve all this, you will need to consider formally registering your brand so you can own it and control how it is used in the future.
Interestingly, colours fall within the scope of trade mark protection. If you have a product that utilises or is connected to a certain colour, you may be able to trade mark that colour in certain conditions to prevent others from using it. How are colour trade marks enforced, though? This article will discuss tips to exclusively obtain the right to trade mark a colour.
Understand the Colour Trade Mark Application Process
It is critical to recognise that the procedure is not simple. If you wish to trade mark a specific color, your company must be able to prove its usage with appropriate evidence. You must also specify how your business will use this type of intellectual property. For example, your registration should include proof that the general public has associated the specific colour with your goods or services.
Additionally, single color trade marks are likely more difficult to register than trade marks with two or more colours. To decide whether your business can utilise, in a practical way, the colour it wants to register, you must conduct research.
Likewise, the procedure of trade marking a colour is similar to that of trade marking a logo or a brand name. However, there are three types of supporting evidence required for the application. For example, the key considerations are that the:
- general public must be able to associate the colour with your goods or services;
- chosen colour must be capable of differentiating your company from competitors; and
- trade mark must comply with the Trade Marks Act’s legal definition of a trade mark.
As a result, it is strongly advised that you get legal advice before applying to register.
Understand the Advantages of a Colour Trade Mark
A colour, or a mixture of colours, is considered a symbol under the Trade Marks Act. In essence, trade marking a colour has three major advantages. It can:
- reduce or eliminate use of your colours on other goods by rivals;
- make your product or service stand out; and
- raise brand recognition.
The purpose of having a trade mark over a colour is to restrict or limit the use of that colour. For example, think of the iconic purple packaging of Cadbury chocolate, or the combination of orange, red and green for 7-Eleven. These are examples of companies successfully registering their brand colour or colours as a trade mark. Likewise, you can search IP Australia to find more examples.
Use Your Registered Trade Mark on the Right Goods and Services
To prevent legal repercussions once your trade mark application is approved, you must understand when and how to utilise your colour trade mark. As a business owner, you should be aware that registering a trade mark fo ra colour does not grant you total ownership. As a result, colour trade marks only grant you the right to use the colour in connection with your specific conduct of business (i.e. a particular good or service).
For example, you might use a specific shade of yellow for your photography company (think of Kodak!). Accordingly, businesses in a similar industry may commit trade mark infringement if they use the same shade of yellow. However, nothing is stopping another company from filing a trade mark for the same colour if their goods or services operate in a completely different industry, like fashion.
Note the Consequences of Incorrect Registration
Using a colour that is already registered as a trade mark by another firm may result in an infringement notice requesting you to cease using their trade mark. In more serious instances, a company may send you a cease and desist letter.
A cease and desist letter is a request from the trade mark owner, urging your business to stop using an element of their brand.
Failure to comply will almost always result in the company taking legal action against you. This might lead to costly legal actions, which you could have avoided by conducting research before using a business name. Likewise, a trade mark dispute may have a substantial impact on your company’s reputation and operations, not to mention the costly and time-consuming nature of court procedures. It might also result in a complete rebranding of your business.
Key Takeaways
Preserving your unique brand colour or colours is possible by registering a trade mark. The purpose of having a trade mark over a colour is to restrict or limit your competitors from using that colour. Consequently, having legal protections over your brand colours can help you stand out from the crowd and establish a reputation in the market. Some tips to exclusively obtain the right to trade mark a colour include:
- understanding the application process;
- understanding the advantages of this trade mark;
- using your trade mark appropriately; and
- noting the consequences of incorrect registration.
If you have any questions about applying for a trade mark in Australia, contact our experienced IP lawyers on 1300 657 423.
Frequently Asked Questions
The first consideration is that the general public must be able to associate the colour with your products or services. Secondly, the chosen colour must be capable of differentiating your company from competitors. Thirdly, your trade mark must comply with the Trade Marks Act legal definition of a trade mark.
When you register a trade mark over a colour, note that it does not provide you total ownership of that colour. Rather, trade marks over a colour only grant you the right to use the colour in connection with a particular good or service.