Colour Trade Marks And Why You Should Watch Out For Them

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In any business, your intellectual property (IP) is what makes you stand out as a unique business.

One particular way of protecting that IP is through registering a trade mark.

Trade marking your business name, the name of your product or service, or even your logo gives you an exclusive right in Australia to use it however way you wish.

But did you know a business can also trade mark a colour?

Whether you’re a new business or you’ve been around for a while, it’s always a good idea to do your research around trade marks.

This article will talk about trade marked colours and why your business should be thinking about them.

What Is A Trade Mark?

In any business, a word, phrase, symbol or logo is usually important in having your brand recognised by your customers and community.

To make sure nobody else uses it, and that your brand stays unique, it can be legally registered as a trade mark through IP Australia – our national register of trademarks, patents and other IP protection.

A registered trade mark in Australia is valid for 10 years (and if you’re thinking of expanding overseas, you may also want to consider international trademark protection). We wrote an article about trademarks here.

Can You Trade Mark A Colour?

You can trade mark a number of things and – yes – a colour is one of them.

A lot of big international companies whose brand relies heavily on a particular colour will often apply to have that specific colour trade marked.

Why?

They want to make sure that colour is only associated with their brand, which keeps their image unique and exclusive.

So, if you’re a small business owner who is thinking of using a particular colour to be central to your business, it’s a good idea to check if that colour is already protected with a trademark.

Colour Trade Mark Examples

It’s quite difficult to have a particular colour trade marked because colours are commonly used everywhere.

So, for a colour to be trade marked, it would have to be clearly unique and specifically well-known to be associated to a business’ brand.

A lot of the existing trade marked colours are those associated with big international brands who’ve poured a lot of time, money and resources into making sure that colour is only theirs to use.

Multinational confectionery leader – Cadbury – spent years in court trying to fight for the right to the colour purple as a trade mark against Nestle.

And even Mattel’s iconic fashion doll Barbie has trade marked their popular bright pink that has been used across all their products and branding for the past 60 years.

You might not even know that the original pale yellow used in Post-It notes is also protected by a trade mark.

So, if you’re using any of these colours primarily as part of your brand, it’s possible that you are infringing on an IP right.

Not sure whether your business is already using a trade marked colour?

It’s easy – you can conduct a quick search on Google or on IP Australia’s Trade Mark Register.

Or if you’re still not 100% sure, you can set up a lawyer consultation with our friendly team at Sprintlaw and we’d be happy to help.

The Tiffany Blue

Perhaps the most well-known trade marked colour is Tiffany & Co’s iconic turquoise blue that stands out on its classic Tiffany blue box.

In May 2019, a small Australian business owner was sent an infringement notice by Tiffany & Co for using the same blue listed on its website as their main product (you can read more about it here).

This business had already been running for five years, and were completely unaware that the particular colour of their main product was already an IP right protected by a trade mark.

So, even if you’re not familiar with a particular brand’s colour, it’s a good idea to do a quick search on whether you are using an already existing trade marked colour.

Not doing your research beforehand is not an excuse, it’s important to be aware of other companies’ trade marks.

Why?

Infringement warnings are a headache and rebranding is expensive – especially if you already have an established business!

What’s The Risk?

As you can see, operating with a trade mark that is already registered under another business can result in an infringement notice to ask you to stop operating with their trade mark.

In the worst case scenario, your business could be sent a Cease and Desist Letter. This is a letter from the trade mark owner requesting that you stop using the trade mark, or they will commence legal action against you.

Failure to comply can lead to court proceedings and a lot of $$ that you could have saved by doing your research earlier on.

This could also be quite damaging to your business: it means you would have to potentially recreate your business brand from the ground up.

And, if your business is already quite established, the last thing you want is to bear the cost of rebranding your entire business.

It’s expensive, time-consuming and a headache when you have to change what your customers are already familiar with.

This could also mean bad publicity for your business – you could lose the trust and confidence of your customers for a silly mistake that could have been avoided altogether.

What Do I Do Now?

The best thing to do is to be proactive.

Whether you’re new to the business scene or a seasoned player, it’s so important to think about how trade marks might affect your business.

If you don’t have anything trade marked, it’s a good idea to consider whether you want to protect your business name, logo or product name under a trade mark.

Then, you need to check if anything you already use in your business’ brand is already trade marked in Australia.

Not sure how to approach this? No problem – that’s what we’re here for.

Our friendly team at Sprintlaw can offer you a legal consultation that includes an Intellectual Property Health Check for your business.

We offer fixed-fee packages on registering trade marks, which already includes all associated admin fees, so there are no hidden fees!

If you’re keen on making sure your business’ IP protection is in good shape, contact us at team@sprintlaw.com.au or 1800 730 617.

Regie Anne Gardoce

Regie is the Legal Transformation Lead at Sprintlaw, with a law degree from UNSW. Regie has previous experience working across law firms and tech startups, and has brought these passions together in her work at Sprintlaw.

Tomoyuki Hachigo

Tomo is the co-founder of Sprintlaw and a commercial lawyer with a broad range of legal experience. Before starting Sprintlaw, he was an M&A lawyer at a top-tier law firm advising businesses of all sizes from large corporates to startups.