subject: Australian Trademark Recognises Colour [print this page] 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 Socit des Produits Nestl 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.
Background
Mars, 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 Nestl. 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 as the leading colour across the entire variety of Mars' cat food products;
Mars also made clear that the color 'Whiskas Purple' was created and carefully chosen for the Mars Group in Europe to form a stronger brand name identity for Whiskas.
Federal Court Decision
The court allowed Mars application to proceed to registering its shade of purple as its TM. The Court further held that Mars had implemented a completely new color and had heavily endorsed it from the outset in its packaging and advertising supplies up to the time that Mars filed its TM application.
While other companies in Australia have used a range of shades of purple on their own pet food products, the shade of purple in Mars's case was used to signify specific range within a product. On the other hand, Mars had used its colour 'Whiskas Purple' as a brand in its own right.
Lesson for Brand Owners
The lesson from this case is that it is vital that all the Brand Owners must apply for registration of their TM in case they use color as a feature of their mark. However, it should be noted that registering a single color would not be easily obtained.
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