Can a business owner trademark a specific colour?

by The FindLaw Team

Branding is an important part of any business. Whether it’s a multinational corporation flashing the golden arches or a local boutique law firm emblem, brand identity and intellectual property are extremely valuable assets essential to maintaining a competitive advantage in the business environment.

Colour can potentially be an important part of building a brand and choosing the right colour scheme can be critical in establishing how a business wishes to convey its message in the marketplace, as certain colour schemes have different connotations.

In order to protect your colour branding, it is possible to apply to register a trademark which is generally obtained to differentiate the goods and services of one trader from those of another, and is also a vital marketing tool used to protect your business brand. A registered trademark is legally enforceable under intellectual property law, and gives you exclusive rights to commercially use, licence or exploit your trademark via any goods and services.

To obtain trademark protection for a colour it must be capable of distinguishing the products and services of a business from competitors, functioning in essence as a statement of originality. Cadbury, for example, is well known for its use of the colour purple in its packaging, and has successfully built a recognisable brand from their trademarked colour scheme. Therefore, it becomes important to determine earlier rather than later whether the intended trademark is available, which can be done through the IP Australia website. A trademark search will disclose both registered trademarks and any trademarks applied for, and while it sounds simple, a search needs to be thorough. An IP professional may be able to help you with further advice and assistance.

There are ways to increase the likelihood of obtaining a registered trademark for your colour branding and by using the colour intensively and extensively in marketing campaigns is a good approach, as a record of colour use and can be vital in successfully obtaining trademark protection for a colour. The ability to demonstrate the reputation of your brand is crucial because insufficient evidence of colour use can potentially result in an unsuccessful application for trademark protection.

Once a trademark has been successfully registered it can be held indefinitely, although it must be maintained. If the trademark is not in use, an application can be made to have a trademark removed in the event that the trademark is attractive to another party.

Design, colour and trademark laws

As with colour use, designs can provide a business and its products with a point of differentiation and registration gives you, the owner, exclusive legal rights to use, sell or licence the design. A design can refer to any figure, pattern, or arrangement that adds a unique appearance to a product. The Apple iPhone for example, is a registered and highly recognisable design.

According to governmental requirements surrounding intellectual property, in order to register a design, it must be ‘new’ and ‘distinctive’, as infringement on another party’s current design could open a person up t legal action. Before submitting an application, it is best to research existing designs in order to determine whether or not your design is ‘new’ and ‘distinctive’, and therefore worth registering. There is a database of registered designs available on the IP Australia website which may help you in your search, and could save you from facing potential legal action.

If your proposed design has already been disseminated publicly this could affect your application to register it as the design may not be considered new and distinctive. This includes using it on a website, exhibiting it, or selling copies. There are other options to protect yourself if this is the case, and it is best to consult a patent lawyer who can aid with the process.

In summary, protecting your intellectual property is an important and advantageous strategy. Colour branding and designs are valuable assets, and by obtaining legal rights to these you can ensure you are taking the right precautions for your business.



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