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Court Purple

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 Nestlé'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.

About the Author

If you ban one book why not another?

People are going to court over the banning of Harry Potter books. If they chose to ban those books based on so-called religious reasons, than what is stopping them from banning such books as The Color Purple for its depiction of sexual abuse, and Peter pan for its promotion of children running away? There are thousands of wonderful books that deal with magic and fantasy that allow children to expand there imaginations. Should there be grade level restrictions in public schools for certain books that do contain more questionable contents? Wouldn't that be better than saying that no children are ever allowed to read these books in school, despite the moral lessons and wonderful literature values these works contain?

I agree with you.
But I honestly think banning certain books is pointless because one way or another, kids are still going to read them, or even watch the movie made from the book.

Super Mario Galaxy 2 - Cloudy Court Galaxy's Hidden Star: Silver Stars in the Purple Pond

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This entry was posted on Tuesday, April 21st, 2009 at 8:42 am and is filed under bedding. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.