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V energy maker loses trade mark battle in Australia

Frucor, a New Zealand beverage maker lost its 6 year battle against Coca Cola to register a colour trade mark for the colour green. Frucor is the maker of the popular V energy drink which has been sold in its signature green cans since 1997.


Court decision

On Monday, 2 July 20018 Justice David Yates dismissed an appeal by Frucor to register a trade mark for the colour green (Pantone 376c). In the decision, Justice Yates held that the colour green was not capable of distinguishing the V energy drink from other energy drinks. Frucor argued that the colour green had become distinctive through extensive use. However, Justice Yates held that the colour did not function as a trade mark. In this regard, he referred to the use of other colours for different V energy flavours.

In additon, Frucur made a fatal mistake by including the wrong colour sample in its trade mark application back in 2012. Justice Yates stated that a trade mark application must include a representation that is sufficient to identify the mark. He dismissed Frucor’s appeal to amend the trade mark application to correct the error.


Trade mark registration

A trade mark is an element or sign that is used to distinguish a business or product from that of a competitor. For example, a trade mark may be a business or product name, a logo or a slogan. There are other less common types of trade markes, such as sounds, scents, and as in this case colours.

The registration of a trade mark gives the owner the legal right to stop others from using the mark for the registered goods and services. Thus, if a trade mark is registered for a colour, other traders cannot use this particular colour.

More information about the registrations of trade marks can be found here.


Take home message

The decision confirms how difficult it can be to register a colour trade mark, even if it can be shown that the colour has been used continously for a long period. Another famous example for a long trade mark battle for a colour trade mark is the Cadbury case for the colour purple.

The decision also shows how important it is to get the trade mark application right from the beginning. Some mistakes are fatal and cannot be corrected at a later stage.