We’ve covered this before in the past – the Trade Marks Act 1995 (Commonwealth) allows for “exotic” trade marks to be registered. These include colour marks (BP Green), shape marks (Coca-Cola bottle), sound marks (“aah, McCain, you’ve done it again… ding!”), and even scent marks (there’s only one… an eucalyptus golf tee).
Unfortunately as Cadbury found out, these exotic trade marks aren’t easily registered. They tried to apply for a colour trade mark over the colour purple, as commonly used on their wrappers. Nestle fought them over it.
In the case, the UK courts found that Cadbury’s application was unfortunately too vague as it merely described that the colour purple was predominantly used on it’s wrapping. While UK law is different to than Australian law, these are not unfamiliar concepts – and similar principles apply. Yes it is indeed possible to make an application for a colour trade mark in Australia, but it certainly is important that the application is precise, correct, and has enough evidence to support the applicant, in essence, having a monopoly over a colour, or a combination of colours.
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