How To Protect a Colour as a Trademark: The Case of Cadbury Purple

Think of Cadbury and many of us instantly picture that distinctive, rich purple on chocolate wrappers. That “Cadbury purple” is more than clever design - it’s a well-known example of a colour trade mark that helps protect brand identity in Australia and around the world.

In a crowded market, a signature colour can make your products stand out, cue instant recognition and build trust. But can a business really “own” a colour? And if so, what does it take to secure and defend that protection in Australia?

In this guide, we unpack what a colour trade mark is, how to register one, the hurdles you’ll need to overcome, and the lessons from the Cadbury purple story - all in plain English for Australian business owners.

What Is a Colour Trade Mark in Australia?

Under Australian law, a trade mark isn’t limited to words and logos. It can also include shapes, sounds, scents and colours - so long as it distinguishes your goods or services from someone else’s.

A colour trade mark protects the use of a specific colour (or colour combination) as a “badge of origin” for nominated goods or services. You’re not claiming the colour in every context. Instead, you’re seeking exclusive rights to use that colour as a distinctive brand cue in a clearly defined commercial space.

To be registrable, the colour needs to be precisely identified (for example by a Pantone code) and tied to particular goods/services. You’ll also specify the trade mark classes that best describe what you sell.

Why go to the effort? Because colours are powerful shortcuts in our brains. When consumers consistently see your colour on your products, packaging or marketing, they start to associate the colour with your brand. That recognition has real commercial value - and is worth protecting.

Why Cadbury Purple Became a Test Case

Cadbury’s ongoing efforts to protect its distinctive purple shade (often described by reference to a specific Pantone) show both the opportunity and the challenge of colour marks.

Over decades, Cadbury used purple widely and consistently across chocolate products, building strong consumer association. As competitors began using similar shades on similar products, Cadbury sought to stop them and pursued trade mark protection to reserve that colour for itself in the chocolate space.

Across applications, oppositions and court proceedings (including disputes with local competitors), a few themes emerged:

• Evidence is everything: courts and IP Australia look hard at whether consumers really see the colour as a sign of origin - not just decoration.
• Precision matters: the exact shade and the way it’s used on the goods need to be clearly and narrowly defined.
• Fair competition: a registration can’t unduly limit others if the colour is common, functional or needed in the trade.

The takeaway for Australian businesses is simple: even if you’re well-known, securing a colour mark is demanding. With the right strategy and evidence, it’s achievable - but the bar for distinctiveness is high.

Can You Register a Colour Trade Mark? What IP Australia Looks For

Yes - you can register a colour as a trade mark in Australia. The Trade Marks Act 1995 allows registration where the sign (here, the colour) is capable of distinguishing your goods or services from those of others. In practice, IP Australia will look closely at:

• Use as a badge of origin: The colour should function as a brand cue, not mere decoration. Consumers should see the colour and think of you.
• Precise definition: Identify the colour clearly (for example, Pantone reference) and describe how it’s applied (e.g. “the primary background colour of product wrappers”).
• Inherent vs acquired distinctiveness: Most colours are not inherently distinctive, so you’ll usually need to prove the colour has acquired distinctiveness through extensive use, advertising and recognition.
• Industry norms and functionality: A colour that’s common, descriptive or functional in your industry (for example, green for eco-labelling or red for safety warnings) is unlikely to be registrable.
• Narrow scope: The more tightly you limit the goods/services and the manner of use, the more likely your mark will be accepted.

It’s also important to get your symbols right. You can use the “™” symbol with an unregistered mark to show you’re claiming it. Only use the “®” symbol once the mark is actually registered in Australia for the relevant goods/services.

If a colour is central to your brand strategy, registering it alongside your other brand elements can be a smart move. Many businesses start by registering their trade mark for a name or logo, then consider a colour application once recognition grows.

Step-By-Step: How To Register a Colour Trade Mark

1) Lock In the Exact Shade and How You’ll Use It

Choose a precise shade and record it (e.g. Pantone or equivalent). Decide how and where the colour appears (primary packaging, product surface, signage, or a defined portion of the goods). Consistency is key: the way you actually use the colour should match how you describe it in your application.

2) Assess Distinctiveness and Build Your Evidence

Because colours are often considered non-distinctive unless proven otherwise, plan for an “acquired distinctiveness” strategy. Collect evidence showing that customers associate the colour with your goods/services, such as:

• Examples of packaging and product images over time
• Advertising spend and campaigns highlighting the colour
• Sales figures and market share data
• PR mentions or surveys indicating public recognition
• Statements from distributors or retailers

The longer and more exclusive your use, the stronger your case.

3) Specify the Right Goods/Services

Keep the scope as tight as possible. Nominate only the goods/services where the colour functions as your badge of origin and select the correct trade mark classes. Overly broad claims are far more likely to be rejected or opposed.

4) File Your Application (and Consider Headstart)

Submit your application online with a clear colour description and any supporting representations. Some applicants use IP Australia’s pre-assessment pathways for guidance before full filing. Either way, expect close scrutiny - colour applications receive robust examination.

5) Respond to Examiner Objections

It’s common for IP Australia to raise objections about distinctiveness, clarity or scope. You may be able to overcome these by amending the description, narrowing the goods/services or filing evidence of use. Practical, targeted responses make a big difference. Where needed, get help with trade mark adverse report advice to strengthen your position.

6) Registration, Renewal and Maintenance

If your mark proceeds to acceptance and no one successfully opposes it, it can be registered. Keep using the colour as described and watch the market for misuse. Remember to schedule your trade mark renewal so your rights continue without interruption.

7) Enforce Sensibly

Registration gives you exclusive rights in Australia for the nominated goods/services. If someone uses a confusingly similar colour as a brand cue for similar goods, consider a proportionate response - often starting with a well-drafted letter. When it’s appropriate, a tailored cease and desist letter can resolve issues early.

Common Pitfalls (And How To Avoid Them)

Assuming You Can “Own” a Colour in General

Trade mark rights are specific. You’re not owning the colour everywhere - only its brand-signalling use for the goods/services covered by your registration. Keep your description tight and realistic.

Using the Colour as Decoration Only

If the colour is just stylistic or ornamental, it’s unlikely to function as a trade mark. Aim for consistent, prominent use that consumers recognise as your badge of origin.

Choosing a Colour That’s Common or Functional

Industry-standard colours (e.g. certain safety colours, eco cues or flavour cues) are hard to monopolise. If competitors need that colour to compete fairly or comply with norms, registration will be difficult. Select a distinctive shade and application pattern that’s unusual in your space.

Overclaiming (Too Broad a Scope)

Trying to cover every product or a wide range of goods/services increases the risk of refusal or opposition. Focus on where distinctiveness is strongest and expand later if justified by use.

Thin Evidence of Distinctiveness

Gather and organise evidence early. Show duration, extent and exclusivity of use. If your market presence is new, you might start with a logo or composite mark and come back to a colour mark once recognition grows.

Incorrect Use of Symbols

Use “™” for unregistered marks and reserve “®” for marks that are registered in Australia for your relevant goods/services. Misuse of “®” can cause legal issues.

Protecting Your Brand Beyond Colour

A colour trade mark is only one part of a strong brand protection strategy. Consider layering your protection so your distinctive elements reinforce each other and your legal position is clear.

• Trade mark registration for your brand name and logo alongside colour claims, so you have multiple rights to rely on.
• IP assignment agreements with designers, agencies and contractors, ensuring your business owns the brand assets they create.
• Non-Disclosure Agreement when you share branding concepts, product roadmaps or launch plans with third parties.
• Website and eCommerce protections, such as Website Terms of Use, to control how your brand assets are used online.
• Keeping your portfolio current with assignments on change of ownership and, if needed, a transfer of a trade mark during a sale or restructure.

If you’re planning a launch or refresh, it’s often efficient to tackle these items together, so your brand story and legal protections align from day one.

Enforcement: What If Someone Copies Your Colour Branding?

When your colour is registered and a competitor adopts the same or a confusingly similar shade for similar goods/services in a brand-signalling way, you have options.

• Monitor and document: Keep dated screenshots, product photos and examples of marketplace use. Context matters - how the colour is applied and how consumers see it.
• Proportionate response: Start with a targeted letter addressing the conduct and outcome you’re seeking. Court isn’t always necessary to resolve a dispute.
• Assess the risk of confusion: Ask whether the competitor’s use is likely to cause consumers to think their goods are connected with yours. That’s central to trade mark infringement analysis.
• Look at other rights: Your logo or packaging trade marks may provide additional grounds. Consumer law (misleading or deceptive conduct) can also be relevant in some scenarios.
• Be realistic about limits: If the use is purely decorative, outside your classes, or in a different industry, infringement may be harder to establish.

If you’re unsure, a short consultation can help you weigh strength, risk and cost before taking the next step.

Key Takeaways

• You can register a colour as a trade mark in Australia, but you must show it functions as a distinctive brand cue for specified goods/services.
• Cadbury purple highlights the two essentials of colour marks: precise definitions and strong evidence that consumers link the colour to the brand.
• Most colour marks rely on acquired distinctiveness, so build a clear trail of use, advertising, sales and recognition before or alongside your application.
• Keep your claim narrow, avoid industry-functional colours, and use the mark consistently as a badge of origin.
• Strengthen your brand position with layered protection - name and logo registrations, IP ownership agreements, NDAs and clear website terms.
• Enforce proportionately: monitor the market, keep records and resolve issues early where possible with a tailored letter before considering litigation.

If you’d like a consultation on protecting a colour or registering a trade mark for your Australian business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.