Can You Register a Colour as a Trade Mark? Here's What You Need to Know
- kemartin18
- May 6
- 4 min read
Sophia Chetcuti, Lawyer
What is a Colour Trade Mark?
In today's competitive market, a strong brand identity can be one of the most valuable assets a business can own, and it forms part of what is known as Intellectual Property (IP). IP refers to 'creations of the mind' such as inventions, artistic works or innovations, which can be legally owned and protected to prevent others from using them without permission.
One common form of IP protection is a trade mark. A trade mark is legally protected 'sign' that a business uses to distinguish products and services from other competitors. A sign can be a word, logo, shape or even a colour.
A colour trade mark can be a powerful way to protect your brand identity, but it can be one of the more challenging types of trade mark to secure.
A colour trade mark can be:
a single colour (e.g. red or purple); or
a combination of colours (e.g. red and gold stripes)
The colour might be applied directly to a produce (like packaging or labels) or used as part of your overall branding.
To make an application for a colour trade mark, there are various requirements which must be met. To have your colour trade mark registered with IP Australia, it must pass a few additional tests (beyond a standard trade mark application), so it's important to understand what's involved before applying.
Is the Colour 'Capable of Distinguishing'?
A key question is whether the colour is 'capable of distinguishing' your goods or services from other businesses. Think of it this way: when people see that colour on a product or brand, does it indicate that this product comes from you, not someone else?
If a colour is too common, too functional, or doesn't clearly indicate your business as the source of the produce, it is unlikely to meet this distinctiveness test.
To meet the requirements, the colour should not:
be commonly used in your industry;
have a technical or functional purpose;
be the natural or typical colour of the product; or
serve a purpose that other competitors need to rely on
When a colour is truly distinctive, it acts like a badge of origin. For example, Cadbury’s signature purple for chocolate packaging and Tiffany’s iconic blue for jewellery boxes are so closely associated with their respective brands that consumers can often identity the brand immediately based on the colour alone.
Avoid Colours with Functional Meanings
A colour may not be registrable if it serves a technical function or has an established meaning in your industry.
For example:
black might be used for heat absorption;
red is commonly used to indicate “hot” or “danger”;
bright yellow is often used for visibility or warning signs.
If a colour is used because it performs a specific role, rather than as branding, then IP Australia is unlikely to allow one business to claim exclusive rights to a colour that other businesses need to use for practical reasons.
Check Whether the Colour is Common to the Trade
A colour may not be considered distinctive if other businesses legitimately need to use the same colour for similar products or services. IP Australia aims to keep colours that are widely used in a particular industry available for everyone.
For example:
orange is commonly used in high-visibility clothing or tools for safety purposes;
silver/grey is commonly used in technology and appliance industries;
green might be popular for eco-friendly goods.
You may not be able to register a colour that your competitors already use or need to use, especially where there are only a limited number of colours available to differentiate between products. The more unique or unusual your colour is in your line of work, the better your chances are of getting it registered as a trade mark.
Consumers Associate the Colour With Your Business
One of the most important factors is evidence of use. That is, have you used that colour long enough and prominently enough that the public now associates it with your business?
Even if your colour isn’t inherently distinctive (e.g. because it’s a simple colour or it’s used by others in the industry), you may still succeed in registering it if you can prove that the colour plays a key role in how customers recognise your business.
Evidence you may need to provide includes:
catalogues, brochures or packaging showing the colour applied to your products;
advertising that promotes the colour as a brand feature;
testimonials from customers and industry professionals;
sales data showing for how long and how widely the colour has been used; and
visuals showing the colour is used consistently across your marketing and brand materials.
The more consistent your use of the colour is, the more likely IP Australia is to accept that it functions as a trade mark.
Ensure the Colour is Visible and Recognisable
The colour must be something a potential customer actually sees and uses to identify your product. If the colour is hidden inside the product or can’t be seen during normal use of the product, it may be difficult to argue that the colour is a “feature” of your goods.
For example, a colour hidden in packaging or product interiors may go unnoticed by most consumers unless the product is dismantled or inspected.
To give your colour the best chance of being accepted as a trade mark, it should:
appear clearly on the outside of the product or its packaging;
be used consistently across advertising, websites and promotional material; and
be featured prominently (not just as an accent or hidden element).
Apply to IP Australia
Once you’ve gathered your evidence, an application to register your colour trade mark can be made.
If you are considering applying for a colour trade mark, it’s important to get the right advice early on. At Shand Taylor Lawyers, we can help assess whether your colour is likely to meet the legal threshold for registration, guide you through the application process, and work with you to build an evidentiary case if needed.
For more information, please contact:
Kimberley Forman, Director
(07) 3307 4523
Sophia Chetcuti, Lawyer
(07) 3307 4515
Hayley Bowden, Paralegal
(07) 3307 4572
Comments