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Australian Trademark Recognises Colour A recent Mantra case provides relief to brand owners seeking to register color as a trademark (TM). Federal Court decision of Mars Australia Pty Ltd v Société des Produits Nestlé SA [2010] FCA 639 (Mantra case), Mars Australia Pty Ltd (Mars) was allowed to register its color called 'Whiskas Purple', which it uses in its "Whiskas" brand of cat food as a TM.BackgroundMars, the owner of the well-known cat food Whiskas had used its Whiskas Purple color on its cat food products.Mars applied for registering 'Whiskas Purple' as a TM. Although at first, the application was accepted, the registration was later abandoned by the trademark authorities due to opposition from Nestlé. Nestle contested that the color purple was not able to differentiate Mars' products from those of other traders.Mars further appealed in the Federal Court, which later accepted the Mars's contention that colour could indeed function as a TM of a product. Mars submitted significant evidence to prove the same. Mars proved that:Mars had used its colour 'Whiskas Purple' in Australia since 2000 and it had been greatly endorsed and promoted.The colour had been used...more
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