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V Energy Drink and Coca-Cola – which green is it?

Intellectual property protection

Recently Frucor Beverages, the V Energy Drink maker, attempted to register the colour green (Pantone 376C) as a trade mark but the Coca-Cola Company had other ideas.

Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark as ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade…’

Section 6 of the Trade Marks Act 1995 (Cth) defines a ‘sign’ broadly to include colour, sound or scent.

If Frucor Beverages had been successful in registering the colour green as a trade mark, they would have had the exclusive right to use that colour in the class of goods and services in which it was registered. This may have prevented other competitors such as the Coca-Cola Company from using the particular shade of green in its products.

In this case Frucor Beverages failed to establish that the green colour alone was recognised as its brand. Green was not the only colour it used to market the drinks, so the question was raised whether green represented the drink’s flavour or type as opposed to the brand.

There was also no evidence that the consumer exclusively associated the colour green with the product and there were also other similar products in the market using the colour green – such as a variant of the Coca Cola Company’s energy drink “Mother”. Survey evidence introduced by Frucor Beverages to argue its position was considered imprecise and inconclusive.

A feature of a trade mark capable of being registered is that it must distinguish the product from other products and services of its competitors. Generally, it is difficult to seek registration of a colour as a trade mark because it is difficult to establish that a certain colour is exclusively associated with a product.

However, it is not the first time that colour green has been caught in the midst of a legal battle. British Petroleum was embroiled in a legal battle for many years over the colour green against Woolworths. Another famous battle raged between Darrell Lea and Cadbury over the colour purple.[1] It is certainly possible to register a colour as a trade mark, which will undoubtedly provide many exclusive benefits to the trade mark holder, but it is not easy to do so.

If you have any questions or concerns regarding your intellectual property rights, please contact Nilanka Goonetillake on nilanka.goonetillake@chamberlains.com.au or call the office on (02) 6215 9100.

[1] Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8.

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