Can a single colour be a brand? Generally, the Trade Marks Office and the Courts are reluctant to recognise claims made by a business that a specific colour is theirs alone. There are of course some famous exceptions. Kodak owns the colour gold as a trade mark for photographic film and Cadbury owns the colour purple for chocolate. So what does it take to secure rights in a colour? This question has again been considered by the Trade Marks Office in an opposition brought by The Coca-Cola Company against Frucor Beverages Limited in connection with Frucor’s claim that a particular shade of green was distinctive of their energy drinks. Frucor’s “V” energy drinks are sold like this:
These drinks have been sold in Australia in large numbers for many years and much of Frucor’s promotion has used the colour green. Yet the Office decided against Frucor’s application. Central to the decision was whether Frucor had established that the green colour alone was perceived by consumers as a brand – as a badge of origin. The Office was not satisfied that it did. It didn’t help Frucor’s case that it sold flavoured variants of its “V” energy drink in other colours – blue, orange, silver and black. Why would the green colour of the original drink be perceived as a brand and the other colours not?
Survey evidence from Frucor was also not seen as compelling. Whilst almost a quarter of respondents to a survey conducted for Frucor had said that they identified the colour green with Frucor’s energy drinks, the Office found the survey sample too narrow – only people who had recently purchased energy drinks. Further, the question posed was too imprecise – respondents had not been asked whether they exclusively associated the colour green with Frucor’s drinks.
The nature of the product was another factor that counted against Frucor. Non-alcoholic drinks have historically been sold in a range of colours to distinguish flavours and varieties. A lime drink is of course green. And the fact that it was the colour green and not some other colour was also problematic. BP has pursued registration of the colour green through the Courts and the Trade Marks Office for many years and to date has failed. Green is associated with environmentalism, natural products and clean living. How could it be right to lock up for one trader a colour used and associated with these characteristics?
The take out from the Frucor decision is that conventional colours remain difficult to register as trade marks and that single colours by themselves are unlikely to be perceived as trade marks unless used in a way which educates consumers that the colour is to be seen as a brand rather than as a reference to flavour, type or some other characteristic.