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Colours - A Significant Component in a Trade Mark

Nestle filed an opposition against Mars contending that the color used by Mars on its cat food packaging and marketing materials was highly similar to the shade of purple used on Nestl's Purina brand cat food.

Initially, the Trademarks Registry refused Mars's application. However, the Federal Court reversed the decision, and allowed Mars to proceed with registration of its purple color in connection with its cat food packaging.

QUICK FACTS

Whiskas cat food is owned by Mars who started using "Whiskas Purple" (a particular shade of purple "created from scratch") color mark for its food packaging since April 2000.
Mars submitted that the color that it used for its products was unique and specifically invented for its product.


OFFICIAL RESPONSE

After the claims filed by Nestle, the Registry rejected Mars's registration based on Sections 41 and of the Trade Marks Act, 1995.

Section 41 of the Act, provides that the registration of a mark may be rejected on grounds of failing to distinguish the applicant's goods and services from those of other existing goods and services.

Mars appealed following the refusal of the application to the Federal Court.

FEDERAL COURT'S FINDINGS

It was held by Bennett J that "Whiskas Purple" was capable of distinguishing Mars's goods from other competitors and manufacturers of cat products on the following grounds:

The color used by Mars was an invented color.

Mars had marketed and used it as a new color in Australia both before and after the application date which indicated Mars's obvious intention of establishing the color as a trade mark.

A survey was also conducted in May 2009 which indicated that "Whiskas Purple" was a well established trade mark.

CONCLUSION

However, before the Court could draw any conclusion Nestle withdrew its opposition and Mars also agreed to amend its specification. The decision of the Court was based on the mutual consent of both the parties.

LESSONS

The decision in this case confirms that a color can be used as a trade mark. This judgment will give an impetus to brand owners to protect non-traditional marks by adopting colors.

Increasingly, color marks have started playing a vital role in a company's branding strategy. Companies should make all efforts to promote the mark from the very beginning to ensure that the color mark is distinctive.

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