Can You Trademark a Colour? A Guide for Australian Businesses

Standing out in today’s crowded Australian market is a challenge for any business – and your branding can make all the difference. But what if a particular colour could make your brand unforgettable? From famous purple chocolates to unmistakable red trucks, colour is a vital asset for many Australian brands. But can you actually trademark a colour, such as “amber,” and own exclusive rights to it in Australia?

In this guide, we’ll walk you through everything you need to know about colour trademarks in Australia, with real-world advice for small businesses and startups. Whether you’re developing your brand identity or already trading, understanding the ins and outs of trade mark law could help protect your business’s most valuable assets. Let’s get started.

What Is a Colour Trademark – And Why Does It Matter?

A colour trademark is a type of trade mark that protects a specific colour (or combination of colours) as a unique identifier of your goods or services. For example, if your business uses a distinctive shade of amber on all your packaging and promotions, you may want to make sure no one else in your industry can copy that look.

Unlike regular trademarks (like business names or logos), colour trademarks don’t protect words or designs, but rather the colour itself when it signifies your business to customers. In Australia, trade mark law – through IP Australia – allows businesses to apply for exclusive rights over colours if they’ve become strongly associated with the company’s brand.

But it’s not a simple process. The legal standard is high, and you must prove the colour has gained “distinctiveness” in the market. That means customers see that shade and immediately think of your business – not just any product in the category.

Can You Trademark a Colour Like “Amber” in Australia?

Yes, you can trademark a colour such as amber in Australia – but it’s important to understand the requirements and limitations. Colour trademarks are only approved if you can prove the colour has become a unique identifier of your goods or services. This is especially important for businesses working in competitive industries, or where colours are commonly used (like food, tech, clothing, and more).

Here’s what you’ll need to show to IP Australia:

• Your use of the specific colour (like amber) is distinctive and not generic within the industry.
• Customers recognise the colour as signifying your goods or services, not just the product type.
• You have a long track record of using the colour consistently in branding, packaging, or advertising.
• Evidence of extensive marketing, media, or even survey data showing the colour’s association with your business.

For example: Let’s say you run a drinks company and have used an amber-coloured label for years – customers now ask for “the amber drink” and you advertise with “Look for the Amber.” You may have a case for registering “amber” as your unique trade mark colour.

However, if amber is commonly used for similar products (e.g. many beers have an amber tint) or simply describes the product (like an amber stone in jewellery) – it’s much harder to prove distinctiveness. Trade marks won’t be approved if they limit fair competition or are too generic for the category.

Why Trademarking a Colour Might Be a Smart Move

As your business grows, imitation can become a real risk. Competitors may try to leverage the popularity of your branding by copying key elements – sometimes even your colour.

Registering a colour trade mark (such as amber) gives you exclusive rights to use that colour for your goods or services within Australia. This can help you:

• Protect your brand identity and market reputation
• Prevent confusion among customers
• Stop competitors from imitating your look
• Increase the value of your brand for licensing or resale

It’s worth noting that a registered trade mark for a colour doesn’t give you the right to that shade in every context – only for the specific goods or services listed on your registration. For example, trademarking amber for energy drinks would not prevent another business using amber for clothes or homewares.

What Are the Requirements for Registering a Colour Trade Mark?

Colour trade mark applications face strict scrutiny from IP Australia. Here’s what you must demonstrate:

• Distinctiveness: The colour must have acquired distinctive character. Generic colours or those commonly used in your industry will rarely be accepted unless you have overwhelming proof the colour specifically means your business to consumers.
• Long-Term Use: Evidence of consistent, substantial use of the colour as part of your brand identity. This might include years of advertising, packaging, and customer recognition.
• Defined Shade: You must specify the exact shade or Pantone number. Simply saying “amber” is not enough; you need to describe the exact colour sample you are seeking to protect.
• Clear Description: The application should include a clear description of how the colour is used (e.g., “the colour amber as applied to the whole surface of the beverage bottle label”).

If you’re unsure if your use of a colour is distinctive enough, it’s best to get legal advice early on so you don’t waste time or money on a weak application.

What’s the Process for Trademarking a Colour in Australia?

Registering a colour trade mark follows a similar process to other trade mark applications, but with extra requirements for evidence. Here’s a general roadmap:

1. Conduct a Trade Mark Search. Make sure no one else already holds or has applied for a trade mark over your chosen colour in your category.
2. Prepare Your Application. Clearly specify the colour (using an industry-standard code like Pantone or RGB), and describe how it appears in your business (e.g., as a label, container colour, etc).
3. Gather Evidence. Assemble proof of distinctive use – such as photos, advertisements, sales data, media coverage, and survey results.
4. Submit to IP Australia. You can file online, but it’s wise to consult a legal expert to make sure your description and evidence are up to standard.
5. Respond to Examiner’s Questions. The process often involves back-and-forth, as IP Australia may request more proof or clarification.
6. Registration and Renewal. Once accepted, your colour trade mark lasts 10 years and can be renewed indefinitely as long as you continue to use it.

For a more detailed explanation or to start your application, check our guide to Australian trade mark law and trade mark registration services.

What Are the Challenges and Limitations?

Trademarking a colour in Australia can add significant value to your brand, but there are some important challenges to note:

• High Proof Standard: Most colour trade marks are refused because the applicant cannot show strong enough evidence of distinctiveness in the marketplace.
• No Monopolies on Common Colours: Colours commonly used for the goods or services (like white for milk or green for salad) are nearly impossible to protect, as customers don’t associate the colour with a single business and it would put competitors at a disadvantage.
• Scope Is Limited by Application: Even if successful, your rights only cover the products and class you specify – not every use of the colour.
• Ongoing Use Is Required: If you stop using the trade marked colour, your rights can be challenged and removed. Maintaining a consistent brand is key.
• International Issues: Your Australian trade mark does not automatically apply overseas. For international rights, you’ll need to file in the relevant countries.

If your colour trade mark application is refused, you can review or appeal the decision – but this adds time and cost. It’s important to speak with a trade mark expert to maximise your chances of approval from the outset.

What Other Legal Steps Should I Consider When Building a Brand Around a Colour?

Trademarking “amber” – or any colour – is only one piece of the legal brand protection puzzle. If colour is a big part of your brand, you should also think about protecting your entire visual identity and making sure your registrations are complete and up to date. Here are some other legal steps to consider:

• Register Your Business Name: Make sure your business name is registered and matches your branding plans. See our guide to business names and company names for more detail.
• Trade Mark Your Logo: If your logo incorporates the colour, consider registering both the logo and the colour as separate trade marks.
• Get the Right Contracts: Have agreements with designers and suppliers to ensure you own the rights to your brand assets, including colour palettes and packaging designs.
• Monitor Your IP: Regularly check for potential infringements and take action quickly to enforce your rights.
• Protect Online Assets: Register domain names and social media handles that use your colour-focused brand name and logo to stop others from capitalising on your reputation.

What Legal Documents Will I Need to Protect My Colour Brand?

Brand protection doesn’t end at your trade mark application. These are the essential legal documents and policies to consider:

• Trade Mark Registration Certificates: Official proof of your registration for colour, name, and logo (as applicable).
• Intellectual Property Assignment Agreements: Ensures that your business, not a freelancer or design agency, owns the rights to your brand materials. Read more about IP assignments here.
• Non-Disclosure Agreement (NDA): Protects your brand secrets when discussing plans with manufacturers, partners, or investors. See our NDA template.
• Licensing Agreements: If you license your brand or colour to others (such as franchisees), clearly set out allowed uses and restrictions.
• Website Terms & Conditions: Important for setting rules for how your brand can be used online, and how customers interact with your site. Explore website T&Cs.
• Contractor Agreements: Tailor all contracts with designers, printers, or marketers to ensure your trade mark rights are respected and protected.

Not every business will need every document on this list, but many will require at least several. Getting these tailored to your circumstances is crucial – a “one-size-fits-all” approach rarely protects your unique brand effectively.

Tips For Building a Distinctive Colour Brand in Australia

Establishing “amber” (or any colour) as your signpost takes planning and time. Here’s how to improve your chances of building a colour trade mark that stands out and can be protected:

• Start using your chosen colour consistently across all branding and packaging from day one.
• Research competitors to ensure your colour isn’t already commonly used in your industry.
• Document your marketing campaigns, advertising spend, and any recognition in the media or by consumers.
• Consider running market surveys to demonstrate how your colour is seen as unique by the public.
• Get legal advice on the best way to describe your use of colour in trade mark applications.

Key Takeaways

• Trademarking a colour like amber in Australia is possible, but only if you prove the shade is uniquely associated with your brand for specific goods or services.
• The legal standard is high – you must show long-term, consistent, and prominent use of the colour as your brand identity.
• Colour trade marks are limited in scope: They only apply to the goods/services listed on your registration, and cannot block all uses of the colour in the market.
• Having strong contracts and a comprehensive IP protection plan around your whole brand (not just the colour) is essential.
• Not every business needs to trade mark a colour, but if a particular shade is core to your brand, it could be a vital part of your long-term strategy.
• Expert legal guidance can make the process smoother and give you the best chance of approval.

If you’d like a consultation about trademarking a colour, building your brand, or protecting your business identity in Australia, reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.