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This page considers colours as trademarks.

It covers -


As noted in the preceding page of this profile, brand owners have increasingly sought to register sounds, smells and colours as trademarks.

The essential challenge is the task of proving that the particular colour is unique and is closely associated with the brand.

It is important to note that a particular colour mark does not cover all possible uses. A trademark might thus be issued for use of a specific colour (eg identified on the Pantone scale) in relation to a particular product - protected under a discrete trademark class - rather than for every use of that colour. People in the US are accordingly free to decorate their nails (or poodles) and birthday cakes using a particular shade of pink without infringing the 'pink batts' colour mark.


Australian and overseas entities have sought to trademark colours, including purple for chocolate and orange for champagne.

The US Supreme Court held in Qualitex Co. v Jacobson Products (1995) that colour per se was registrable as a federal trademark.

In the US fibreglass group Owens-Corning was initially unsuccessful in seeking to trademark the colour pink in association with its pink insulation batts. It had spent heavily on promotion (including licensing of the Pink Panther cartoon character) and was able to demonstrate that consumers associated the colour with its product.

Owens-Corning appealed rejection of decision and was eventually successful in registering the colour in relation to the particular product, with the court holding that

A pink color mark registers for fibrous glass insulation does not confer a 'monopoly' or act as a barrier to entry in the market. It serves the classical trademark function of indicating the origin of the goods, and thereby protects the public.

That has led some commentators to editorialise about 'color wars' and fret that allowing "appropriation of a single color" through a trade mark would result in "exhaustion" of "all of the attractive colors" in every trade mark class.

In action since the Qualitex case the Court of Justice of the European Communities noted that although there may be some media on which it is possible to record a colour in permanent form, there are others (such as paper) where the shade of the color cannot be protected from the effects of time.


Some idea of challenges is provided by the following overseas disputes, pre- and post- the Qualitex case -

Ambrit v. Kraft
805 F.2d 974, 993 (11th Cir. 1986)

US frozen dessert manufacturer Ambrit badged its products in 'royal blue'. Kraft Foods, a multinational competing in the same sector, adopted the same colour in their packaging its desserts. Ambrit sued to prevent Kraft from using blue.

US courts rejected Ambrit's claims as overambitious, indicating that use of royal blue in packaging frozen desserts was "functional" and thus could not be monopolised as a trade mark. The appellate court commented that

Royal blue is a 'cool color;' it is suggestive of coldness and used by a multitude of ice cream and frozen dessert producers.

Campbell Soup v Armour
175 F.2d 795 (3d Cir.), cert. denied, 338 U.S. 847 (1949)

Campbell, whose signature red & white label was later appropriated by pop artist Andy Warhol, claimed that use of red & white in food packaging by competitor Armour represented trade mark infringement.

Consistent with the Ambrit case, a US court was unimpressed, with commenting

If they may thus monopolize red in all of its shades, the next manufacturer may monopolize orange in all of its shades and the next yellow in the same way

The Third Circuit noted that the 'Campbell red' was a different shade to that of the Armour 'Carnation red', with the competitors typically using the colours in different patterns that would minimise confusion among ordinary consumers. It commented that "a man cannot acquire a trademark by color alone"; Campbell thus should not enjoy a monopoly of a "functional color".

Dap v Color Tile Mfg.

In the 'Red Buckets' case US sealant manufacturer Dap marketed its mastic in a red bucket, suing when competitor Color Tile Manufacturing Inc packaged a sealant - aimed at Dap's market - in a similar red bucket

A US federal district court granted protection to Dap for its red bucket, finding that Dap used the red purely as a unique indicator of the product. Neither the colour nor the bucket were functional attributes of the sealant (eg its strength, toxicity or other quality), in contrast to the red used to indicate danger or urgency in relation to fire engines and fire extinguishers. The "secondary meaning" of the colour in relation to the sealant was restricted to Dap's product, rather than to all sealants or all sealants for tiles. Any copying by a competitor of Dap's packaging must accordingly be an attempt to exploit consumer recognition of Dap's products and create confusion among buyers of sealants.

Life Savers v. Curtiss Candy Co
182 F.2d 4 (7th Cir. 1950)

The US 7th Circuit in 1950 famously denied Life Savers protection for its striped colours, noting that it was

a general practice of the trade for hard candy manufacturers to sell their candy in packages with multi-colored backgrounds for their assorted flavored discs, and labels with single colored background for their packages containing one flavor of candy discs.

The Court held that the multi-colored packaging was 'descriptive' - serving as a ready identification of the flavour of the candy in that wrapper. It accordingly concluded that there had been no trademark infringement and that Curtiss had not engaged in unfair competition.

Manz'sche Verlags v. Linde Verlag

In the 1997 'Red Lawbooks' case the Austrian Supreme Court ruled that use on a series of books (or other class of products) of the same colour previously used by a competitor to identify its products party violated Section 9 of that nation's unfair competition statute.

The decision prohibited the defendant from publishing law books in the same shade of red as those plaintiff'. The Court was unpersuaded by the defendant's demonstration that publishers in other EU countries, notably Germany, published series of legal texts in the very same shade of red.


In Australia the Registrar of Trade Marks and the Federal Court have accepted that a colour can satisfy the requirements in the Trade Marks Act 1995 (Cth) for registration, in particular s 41 (ie capacity to distinguish the particular goods/service).

Attention has focused on the 2006 Federal Court decision in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4), a dispute between chocolate makers about use of the colour purple, but it should be noted that a range of colours are being used as marks in Australia.

Justice Heerey commented (consistent with the decision in Campomar v Sociedad Limitada Nike International) that

Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate in Australia. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury.

He noted that Cadbury never uses the colour purple in isolation as an indicium of trade; its products always bear the Cadbury name in a distinctive script and its use of purple is seen by consumers as inextricably bound up with the Cadbury name in its distinctive script.

His assessment was reflected in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 - here. (The 2008 decision followed an appeal by Cadbury regarding the admissibility of the expert evidence, with the Full Federal Court remitting the matter to Heerey J for further trial.)

In contrast the 2003 decision by Mansfield J in the Federal Court held that Philmac, a maker of water industry equipment, could register terracotta as a colour mark for non-metallic rigid irrigation pipe fittings because it was capable of distinguishing the company's products. Philmac had appealed to the court after the Registrar of Trade Marks rejected the application.

Mansfield laid down four conditions under which a colour mark can be inherently distinctive -

  • the mark cannot be descriptive (ie cannot evoke a state or condition)
  • the colour cannot be functional
  • the colour cannot be the result of the normal manufacturing process
  • the colour cannot be used in an industry where colour is an important element of competition within the industry

In 2010 Bennett J in Mars Australia Pty Ltd (formerly Effem Foods Pty Ltd) v Societe des Produits Nestle SA [2010] FCA 639 put aside the decision by the delegate of the Registrar of Trade Marks, with Mars accordingly proceeding with registration of its 'Whiskas Purple' (a shade of purple "created from scratch") to identify cat food. Registration had been rejected by the delegate and opposed by Nestle.


Colour marks have attracted increasing academic attention during the past decade. Points of entry to the literature include -

  • Jonathan Baker's 1996 'Correcting A Chromatic Aberration: Qualitex Co v Jacobson Products Co' in 9 Harvard Journal of Law & Technology 2
  • Susan Douglass' 1995 'Color Me Happy: The Supreme Court Rules on the Trademark Registrability of Color' in 7 Journal of Proprietary Rights 5
  • Peter Gillies' 2008 'Colour in Branding: Asserting a Monopoly in a Colour for Marketing Purposes - The Cadbury-Darrell Lea Litigation' (Macquarie Law Working Paper No. 2008-19) paper

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version of June 2010
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