Colour Trade Marks And Why You Should Watch Out For Them

Colours do a lot of heavy lifting in your brand. They catch the eye, signal quality and help customers recognise you in a split second.

But colours can also be protected under Australian trade mark law - and that means you need to be careful how you use them in your packaging, signage, website and uniforms.

Whether you’re launching a new brand or refreshing an existing one, it’s important to understand when a colour is just a colour, and when using it could land you in a dispute.

In this guide, we’ll explain how colour trade marks work in Australia, the common pitfalls to avoid, and practical steps to protect your own brand assets while reducing risk.

What Is A Colour Trade Mark?

A colour trade mark is a trade mark that protects a specific colour (on its own or combined with another element) as a sign that distinguishes your goods or services from others.

In Australia, trade marks can cover words, logos, shapes, sounds, scents and colours. If a colour has become strongly associated with one trader’s products or services, it can, in some cases, function as a brand identifier and be registered as a trade mark.

For example, a business might seek protection for a particular shade of blue used consistently on its product packaging, or a distinctive colour applied to the whole exterior of a device. The protection generally relates to that colour as used for specified goods/services, not the colour in all contexts.

Importantly, colour trade marks are harder to register than standard word or logo marks. That’s because colours are commonly used in trade, so you often need to prove the colour has acquired distinctiveness through extensive and consistent use.

Can You Trade Mark A Colour In Australia?

Yes - but there are hurdles. IP Australia (the government agency that administers trade marks) will assess whether your colour functions as a badge of origin for your goods or services.

Distinctiveness Is Key

A colour, on its own, is usually considered “non-distinctive” because many traders need to use colours to advertise or decorate their products. To be registrable, you must typically show that the colour has “acquired distinctiveness” - meaning consumers have come to recognise that colour, used in your particular way, as indicating your business.

Evidence may include long-term use, sales figures, marketing spend, market surveys, media coverage and how consistently and prominently you’ve used the colour for your goods/services.

Functional Or Common Colours Are Difficult

If a colour serves a practical function (for example, safety orange for visibility) or is standard in the industry (for example, blue for cold water tap handles), it will be difficult to register because competitors need to use those colours too.

Define The Colour Precisely

When applying, you’ll need to specify the colour clearly. This usually means including a recognised colour code (such as Pantone, RGB or CMYK) and a description of how the colour is used (e.g. “applied to the entirety of the packaging of the goods”). Clear definitions help avoid ambiguity and strengthen your protection.

Choosing The Right Classes

Your application must also identify the correct goods/services classes. Choosing the right trade mark classes is crucial because protection applies only to the goods/services you nominate. A colour used on food packaging, for example, won’t automatically be protected in relation to clothing.

Practical Tip

If you’re serious about protecting the colour element of your brand, consider filing a standard word or logo mark as well as a colour mark. Word and logo marks are often easier to register and enforce, while a colour filing can be a strategic “extra layer” where the colour really carries brand recognition.

When Should You Worry About Colour Use?

Most businesses use colour every day without issue. The risks arise when your colour choices get too close to a competitor’s distinctive brand presentation, especially if you operate in the same industry.

Common Risk Areas

• Packaging redesigns that adopt a competitor’s signature colour, shade or arrangement.
• Uniforms, store fit-outs or vehicles with a bold single-colour scheme similar to a market leader.
• App and website interfaces that mirror a rival’s unique colour palette in a way that could confuse users.
• Seasonal campaigns using a competitor’s distinctive colour in the context of similar products/services.

It’s Not Only About Registered Rights

Even if a competitor doesn’t have a registered colour trade mark, you can still face issues under the Australian Consumer Law for conduct that misleads consumers. If your colour scheme and overall “get-up” (the look and feel) could cause confusion about origin, that can attract claims about section 18 of the Australian Consumer Law (misleading or deceptive conduct) and section 29 (false or misleading representations).

These “look-alike” or “passing off” style disputes often turn on whether your overall presentation - including colour - is likely to mislead customers. It’s why many businesses protect not just words and logos, but also the way their brand appears in market.

How To Check And Reduce Your Risk

Before rolling out a new colour scheme or brand refresh, take a moment to review the legal risk. A little diligence upfront can save you from a costly rebrand later.

1) Conduct Clearance Checks

Search for registered and pending trade marks that include similar colours or descriptions in your industry. Look broadly at competitors’ packaging and stores as well. If you spot a colour heavily associated with a particular brand, think twice about adopting a similar shade or placement.

If in doubt, chat with an intellectual property lawyer to assess the risk, including unregistered rights (reputation) that might not show up in a simple registry search.

2) Look At The Whole Picture

Courts and regulators look at the overall impression. Colours, shapes, typography and layout all play a part. Even if your exact shade differs slightly, using a near-identical palette and arrangement can still create confusion in the minds of consumers.

3) Avoid Functional Colour Choices

Steer clear of colours that are standard or necessary in your field (for example, colours that indicate function or safety). These are harder to protect and more likely to be used by many businesses.

4) Keep Brand Guidelines

Document how your colours should be used across packaging, websites and marketing. Consistent application helps build your own brand distinctiveness and reduces the risk of drifting into a competitor’s territory.

5) Get Sign-Off Before Launch

Make a legal review part of your brand rollout checklist. It’s much cheaper to fine-tune colours and layouts at the design stage than to reprint packaging or refit stores after launch.

Protecting Your Own Brand Colours

If your colour scheme is truly doing brand work for you, it’s worth thinking about protection. You don’t need to own a colour everywhere - the goal is to stop competitors from using your distinctive colour in a way that confuses customers about the origin of similar goods or services.

Register Core Brand Assets First

Start by protecting your word and logo marks. Filing to register your trade mark for key brand names and logos is usually the strongest first step, and can be more straightforward than a colour application.

Consider A Colour Trade Mark Strategy

Where your colour is central to recognition (for example, your packaging is a distinctive, consistent single-colour), consider a colour application supported by strong evidence of use and consumer recognition. Choosing the right trade mark classes and drafting a precise colour description are critical.

Use, Use, Use - And Keep Records

Distinctiveness comes from consistent use. Apply your colour scheme across your core touchpoints and keep records: dated packaging proofs, advertising, sales data, screenshots and media mentions. If challenged, this evidence helps demonstrate acquired distinctiveness.

Lock Down Ownership Internally

If your colour palette and brand assets were created by external designers or contractors, ensure you own the IP. This is where an IP assignment from the creator to your company is essential so the rights sit with you, not the individual.

License Your Brand Carefully

If you permit others to use your colour scheme (for example, distributors or franchisees), use an IP licence that sets rules around accurate colour codes, placement and quality control. Consistency helps maintain distinctiveness and avoids damage to your brand reputation.

Don’t Confuse Trade Marks With Registration Of Names

Owning a business name or company name doesn’t grant trade mark rights. These are different systems. If you’re building a distinctive brand, make sure you understand the difference between business name vs company name and trade mark protection, and file trade marks where it matters.

Enforcement: What If Someone Copies Your Colour?

If a competitor adopts a colour scheme that’s close to yours and operates in similar markets, you have options. The right strategy depends on what rights you hold and how the competitor is using the colour.

Trade Mark Infringement

If you have a registered colour mark (or other registered marks covering your brand presentation), you can consider action for trade mark infringement. Typically, this starts with a carefully drafted letter outlining your rights and proposed resolution (e.g., modifications or a phase-out). Your evidence of distinctiveness and market recognition will be important.

Misleading Or Deceptive Conduct

Where registered rights are unclear or limited, you may also consider a claim under the Australian Consumer Law. If the overall get-up (including colour) is likely to mislead consumers about origin, that can be actionable as misleading or deceptive conduct. Often, disputes resolve commercially once the risks are explained and both parties appreciate the cost of confusion in the market.

Commercial Resolution

Not every clash needs a courtroom. Frequently, a negotiated change in shade, placement or context can resolve the issue. The earlier you raise the concern, the easier it is for both parties to make pragmatic adjustments.

Practical Design Tips To Stay Out Of Trouble

Good design choices reduce legal risk without compromising creativity. As you develop or refresh your visual identity, consider these practical tips.

• Favour multi-element distinctiveness: combine colours with a unique word mark, logo shape or pattern so your brand stands out for several reasons, not just colour.
• Avoid “monopoly” mimicry: if a market leader is known for a single, bold colour on similar goods, avoid using a near-identical solid colour in the same way.
• Change more than just the shade: if you must use a similar colour family, differentiate the layout, secondary colours, typography and graphic elements.
• Test with real customers: quick A/B tests or user research can reveal whether consumers might assume your product comes from someone else.
• Document your choices: keep a rationale for your colour selection, and include colour codes in brand guidelines to ensure consistent use.

Colour Trade Marks: Process, Costs And Timelines (At A Glance)

Applying for a colour mark generally follows the same process as other trade marks, but expect closer scrutiny.

• Pre-filing checks: assess distinctiveness and compile evidence of use (if relying on acquired distinctiveness).
• Application: nominate goods/services, provide colour definition (e.g., Pantone code), and include a precise description of use.
• Examination: IP Australia examines distinctiveness and may issue an adverse report. Responding often involves legal submissions and evidence.
• Acceptance and opposition: if accepted, the mark is advertised and third parties can oppose registration.
• Registration: once registered, renewals are typically every 10 years, the same as other marks.

Because objections are common with colour marks, many businesses file a wider protection strategy (word/logos plus colour) so protection isn’t all-or-nothing on a single application.

How Colour Interacts With Other Brand Rights

Strong brand protection usually combines several elements:

• Registered trade marks for names and logos (and colours where justified).
• Consistent brand use to build reputation and acquired distinctiveness.
• Clear ownership via contractor agreements and IP assignment from creators.
• Controlled brand use with well-drafted IP licence terms for partners or franchisees.
• Readiness to address look-alike issues using trade mark law and the Australian Consumer Law.

Key Takeaways

• You can register a colour as a trade mark in Australia, but you usually need strong evidence that the colour has become distinctive of your brand for specific goods/services.
• The biggest risks arise when your colour choices and overall get-up look too close to a competitor in the same market, which can trigger trade mark and consumer law concerns.
• Before a brand refresh, do clearance checks and get sign-off - a short review by an intellectual property lawyer can save you from an expensive rebrand.
• Protect your brand by registering core word and logo marks first, and consider a colour mark if the colour is truly central to recognition - with careful class selection and a precise colour definition.
• Lock down IP ownership with the right paperwork (such as an IP assignment) and manage third-party use through an IP licence and brand guidelines.
• Misleading or deceptive conduct rules under the Australian Consumer Law also apply - colour and overall presentation that causes confusion can create legal risk even without a registered mark.

If you’d like a consultation about colour trade marks and brand protection, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.