4 Tips for Trade Marking Your Brand Colours

Emily Young

• 7 June 2021
• 24 June 2021
• 5 min read

A trade mark is a type of intellectual property used to distinguish your business from your competitors. You may want to trade mark a colour or colour combination that you use prominently in your products or advertisements. However, it is often difficult for businesses to successfully have their brand colours trade marked, and many established businesses have had trade mark applications for their brand colours rejected. This article will take you through four tips on trade marking your brand colours.

1. Do Your Research

You must do your research before attempting to trade mark your brand colours. This includes knowing the requirements you need to fulfil to succeed in your trade mark application. For example, you must show that:

• the public associates your brand colours exclusively with your product;
• the brand colours are not widely used or likely to be used in your industry; and
• the brand colours distinguish your branding from competitors, and the brand colours are an important element of your branding. 

Checking that your brand colours are available for use is also an essential part of the application process. If another business has trade marked the same brand colours or is already widely associated with the same colours, your application will likely be unsuccessful. 

You can check whether somebody else has trade marked your brand colours on IP Australia.

2. Be Prepared to Show Evidence

To successfully trade mark your brand colours, you need to provide IP Australia with several pieces of evidence in your application. You must explain how you intend to use the colours in your branding and prove that you have used the colours over a period of time. This evidence proves that the public associates your colours with your product only. 

For example, Cadbury trade marked a specific shade of the colour purple successfully because they had been using the colour for over 100 years. However, even with more than a century of use, they were only successful in trade marking the specific shade of purple for their chocolate products. Other companies have been successful in trade marking colours they had used over shorter periods. In 2010, Mars successfully registered the colour ‘Whiskas Purple’ as a trade mark. Mars was successful because they had been using the colour since 2001 in all of their Whiskas products and because they created the colour ‘Whiskas Purple’ themselves.

3. Be Specific

You must be specific in your trade mark application. You need to think about:

• the exact shades and combinations of colours you use; and
• how you are going to use them.

In your application, you should attach a graphic showing exactly how you intend to use your colour to increase your chances of success.

It is also important to consider that trade marking a single colour like ‘light blue’ will be difficult. You are more likely to successfully trade mark a combination of colours or a specific tone of a colour. For example, Cadbury was successful in trade marking the shade Pantone 26558C and Surf Life Saving Australia was successful in trade marking their red and yellow combination of Pantone 186c and Pantone 136-137. Using specific colours consistently over time will increase your chances of success.

4. Get It Right

It is difficult to make changes to your application after IP Australia has assessed it. Being thoroughly prepared before submitting your application and getting it right the first time is one of the most important things you can do to increase your trade mark application’s chances of success.

For example, in 2012, Frucor Beverages made the mistake of providing the wrong shade of green on their trade mark application for their energy drink ‘V’. Coca-Cola objected to Frucor’s application, saying that the colour did not accurately represent the ‘V’ brand. The court considered the application fatally flawed because of the error. The court did not have the power to change Frucor’s application to fix the mistake. Frucor was ultimately unsuccessful in trade marking their brand colour.

Key Takeaways

Intellectual property is your business’ most important asset. Trade marking your brand colours is one great way to protect your intellectual property. Over time, many businesses have tried to trade mark their colours with varying degrees of success. If you are thinking of registering a trade mark for your brand colours, you should be as prepared as possible to increase the chances of your application being accepted. For any questions about protecting your brand colours, get in touch with our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.

Frequently Asked Questions