Pros and Cons of Claiming Colour as a Feature of Your Trade Mark
Registering your trade mark is an important milestone for your business. Having a registered trade mark can help increase the value of your brand, increase awareness amongst consumers and help you stand out from your competitors. Your trade mark can take many forms, including a slogan, a logo, product packaging, or product shape. When applying for a trade mark for your business’ logo, you may wonder whether you should register it in colour. Colour trade marks have historically been the subject of many trade mark disputes. This article will take you through some of the pros and cons of claiming colour as a feature of your trade mark.
Pro: Increase Brand Awareness
Claiming colour as a feature of your trade mark may help to increase your brand awareness. This is because your trade mark is what consumers remember you by. If you claim colour as a feature of your trade mark, your logo will need to use the same colour consistently. Over time, this can help increase brand awareness, increasing the value of your trade mark and potentially your business overall.
Pro: Enhance Your Trade Mark Distinctiveness
If your trade mark is only a very simple design, claiming colour as a feature of your trade mark may help to enhance its distinctiveness. For example, if your trade mark is a simple geometric shape, claiming colour may help make your trade mark distinctive. This is particularly important if the colour is the key recognisable feature of the trade mark. If your logo is too simple, you may have difficulty registering it as a trade mark without claiming colour as a feature because it will likely be considered too generic.
Con: Hard to Change Your Trade Mark
When you apply for a trade mark in Australia, filing it in colour limits your trade mark rights. Typically, if you apply in either black and white or colour, IP Australia will recognise your trade mark in all colours. This means if you do not claim colour as a feature of your trade mark, you will be able to alter your trade mark slightly over time and express your trade mark in as many different colour variations as you wish. On the other hand, if colour is a feature of your trade mark, using your trade mark in a different colour will cause it to lose protection.
Con: Difficult to Enforce Your Trade Mark Rights
If you claim colour as a feature of your trade mark, you may find it difficult to enforce your trade mark rights. If IP Australia recognises your trade mark in all colours, it will be easier to prove that a similar trade mark infringes on your trade mark rights. However, suppose you register your trade mark with colour as a feature. In that case, an otherwise infringing trade mark may not be considered identical or too similar to yours if it uses different colours than the ones you registered. This is unlikely, but it may not be worth the risk.
Registering colour as a feature of your trade mark has both pros and cons. Some of the advantages include:
- increasing brand awareness; and
- enhancing trade mark distinctiveness.
On the other hand, some disadvantages include:
- you will not be able to alter your trade mark colours; and
- it may be difficult to enforce your rights.
Frequently Asked Questions
In some instances, there will be advantages of claiming colour as a feature of your trade mark. For example, if your trade mark is a generic shape, claiming colour as a feature will increase its distinctiveness. Similarly, being restricted to one colour scheme can help increase brand awareness over time.
It is generally not recommended that you claim colour as a feature of your trade mark. Some of the disadvantages of claiming colour as a trade mark feature include restricting your ability to alter your trade mark over time and making it more difficult to enforce your trade mark rights.