Can I Trade Mark Colours?

Emily Young

• 25 August 2021
• 26 August 2021
• 5 min read

A trade mark is one type of intellectual property (IP) that protects your business’ brand. You can obtain a trade mark over a number of your brand assets, such as your business name or your business logo. This also extends to applying for a trade mark on your brand colours. To help you better understand colour trade marks, this article will take you through the advantages of doing so, and the process of obtaining a trade mark for your brand colours.

Advantages to Trade Mark a Colour

All trade marks have many wide-ranging benefits and this can extend to your brand colours. Claiming a colour as a trade mark can also increase the distinctiveness of your brand. For example, consider Cadbury’s purple colour. The unique purple shade makes Cadbury stand out amongst consumers on shelves and in advertising material. In turn, this has increased their brand awareness and the value of their overall business.

Incorporating colour as part of a trade mark, such as part of your logo, can make it easier to register your trade mark. In addition, if your trade mark is somewhat generic or simple, you may have difficulty demonstrating that it meets the distinctiveness requirement. Therefore, including colour as part of a simple shape may help meet the distinctiveness requirement. 

How to Trade Mark Colours

The process to trade mark a colour is similar to all other trade mark applications. However, providing evidence to support your use of specific colours may prove to be more difficult than other trade mark applications. For example, you must first show that the colour is widely associated with your product. Likewise, the general public must associate your colour or colours with your goods or services. Demonstrating continued use of the colour over time is one way to prove this. 

Next, you must show that your industry and competitors are not likely to use or need your trade mark. An example of this is green for fruit or vegetable products. Green is a ‘natural’ colour for the fruit and vegetable market. This would make it unlikely that you would be successful in applying to trade mark a shade of green for use in such a market.

Finally, the colour must distinguish your branding. To determine this, consider whether, without the colour itself, your brand is distinguishable from your competitors. One example of this is the McDonald’s golden arches, which are distinguishable even when seen in black and white. On the other hand, the combination shades of red and yellow used by Surf Life Saving Australia are enough to recognise the brand.

Famous Colour Trade Marks

Obtaining a trade mark for colours is not an easy process, which is why most of the trade marks for colours are for famous brands. Some of the existing colour marks in Australia are:

• Cadbury and the colour purple, used for the packaging of confectionery items;
• Tiffany & Co and the specific shade of ‘Tiffany blue’; and
• Christian Louboutin and the colour red for red soles.

Each of these colours is limited to specific shades of their respective colours and can only be used in conjunction with specific goods and services. For example, Cadbury only has exclusive rights to the shade of purple for the following goods and services:

• milk chocolate in a bar or tablet;
• milk chocolate for eating;
• drinking chocolate; and
• preparations of drinking chocolate.

This demonstrates just how restrictive colour trade marks can be and the limited circumstances under which they will be granted.

Key Takeaways

Seeking a trade mark for your brand colours is one way to help your brand stand out from the crowd. However, obtaining a trade mark over a colour is quite rare. Consequently, you will need to demonstrate that the colour or colours are:

• widely associated with your product;
• not broadly used or needed in your specific industry; and
• the element that distinguishes your brand, and your brand is unrecognisable without the colours.

If you need assistance registering a trade mark for your colours, contact our experienced trade mark lawyers on 1300 657 423.

Frequently Asked Questions