Should I Protect My Brand Colours With a Trade Mark?
A trade mark is a type of intellectual property (IP) that protects your business’ brand, allowing you to distinguish your brand from your competitors. As well as trade marking the name of your business and your business logo, it is also possible to trade mark your brand colours. This article will explain:
- how you can protect your brand colours with a trade mark;
- the potential advantages of this type of trade mark; and
- your rights around this process.
Can I Trade Mark My Brand Colours?
The short answer is yes. You can protect your brand colours with a trade mark. However, registering colours as a trade mark is a challenging process. You will need to meet the standard requirements for registering a trade mark and satisfy several other conditions to trade mark your brand colours.
Benefits of Trade Marking Your Brand Colours
The advantages of trade marking your brand colours include:
- making your brand more distinctive;
- distinguishing yourself from your competitors; and
- preventing competitors from using your distinctive colours in their branding.
Additionally, several other businesses have realised these benefits and have trade marked their brand colours already. Therefore, you will need to do a trade mark check using IP Australia’s register of trade marks search tool before making your application. Conducting a thorough search will ensure you are not infringing on someone else’s colour they have already trade marked.
Know Your Rights
Trade marking your brand colours is only applicable to the particular class of goods or services that you register your trade mark under. This is the same rule for all other trade marks, like logos or business names. For example, Cadbury’s use of the colour purple only extends to specific chocolate products. Therefore, Cadbury does not ‘own’ the colour purple across all products or categories of goods.
It is also important to note that filing your graphic as a trade mark in a specific colour does not give you exclusive rights to that colour in Australia. Whether you file your graphic in black and white or colour, IP Australia will register your trade mark for use in all colours. This allows you to keep the main features of your graphic the same and experiment with colour variations without losing your trade mark protection. Instead, you will have to apply to trade mark your brand colours as a separate trade mark from your graphic.
Given that it can be difficult to trade mark colours, there are other ways you can stop other businesses from using your business’s classic colours. For example, if you think a competitor is trying to pass off their products as yours, you can assert your rights over your brand colours even without having a registered trade mark.
Getting Your Brand Colours Trade Marked
The process of getting your brand colours trade marked is the same as any other trade mark application. However, you should note the added complexities. The table below explains some of the requirements you need to meet to trade mark your business’s classic colours:
|The colour must be widely associated with your product.||The public widely associates this colour with your product. Likewise, you can prove continued use of the colour over time and demonstrate its importance in your brand reputation.||The shade of blue used by Tiffany & Co. is widely referred to as “Tiffany Blue”.|
|Your industry and competitors must not widely use the colour.||You cannot trademark a colour that is likely to be used or needed by others in your industry.||The use of the colour green in the fruit and vegetable industry is commonly used and needed. This is because it is a ‘natural colour’ of the industry. Therefore, it would not be possible to trade mark a shade of green if your product is in the fruit or vegetable industry.|
|The colour distinguishes your branding.||You should ask yourself if, without the brand colour, your product and brand would be unrecognisable.||The golden arches used by McDonald’s are still distinguishable even when seen in black and white.|
Case Study: The Red Soled Shoes Trademark
The signature red-lacquered sole on designer Christian Louboutin’s high heeled shoes is perhaps one of the most recognisable examples of trade marking a colour. The red sole trade mark is registered in several countries, but even a commercial giant like Louboutin has not been immune to several infringement claims.
Most famously, in 2011, Louboutin tried to argue that Yves Saint Laurent was using the same shade of red on the soles of one of their collections. Louboutin had to prove that it was likely that customers would mistake the Yves Saint Laurent shoes as theirs. Yves Saint Laurent released several lines of monochromatic shoes where the shoe and sole was the same colour, meaning that it would not be fair to stop them from making red monochromatic shoes just because it was Louboutin’s signature colour. Louboutin were successful in retaining their colour trade mark, but only for shoes with a contrasting colour on the upper part of the shoe. Therefore, Yves Saint Laurent’s monochromatic shoe was not considered an infringement.
Trade marking your brand colours is one way that you can build your brand. However, being successful in trade marking your business’s classic colours is very difficult. There are several additional requirements that you must meet for your application to be successful. You should take these requirements into consideration before trying to protect your brand colours with a trade mark. However, even without trade marking your brand colours, it is still possible for you to stop your competitors from using the same brand colours as you.
If you need further legal assistance with trade marking your brand colours or any other trade mark legal assistance, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
A trade mark refers to the form of brand protection that allows you to distinguish your product or service from your competitors. A trade mark gives you exclusive rights to the usage, licensing and selling of the trade mark. Having one can help you grow your business and increase the value of your trade mark.
Yes, you can protect your brand colours with a trade mark. However, this is a difficult process. Likewise, you must provide sufficient evidence as to why you require a trade mark for your business’s classic colours.
As with all trade marks, there are several benefits to trade marking your brand colours. This includes making your brand more recognisable and helping you distinguish yourself from your competitors.
There is no fee to register a trade mark in Australia, but application fees differ depending on the number of classes of goods and services you apply for. There may also be other fees associated with registering your brand colours.