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The legal protection of colour

INTRODUCTION

Colour trade marks, due to its scarcity, are even more precious than words and shapes. Numerous business proprietors scrambled for exclusive rights over a colour; however, majority of them failed. Among those cases, there is no lack of some heavyweight businesses. Some suggested that there was an ongoing difficulty in registering colour marks. In this paper, we will firstly examine the present circumstance in relation to the registration of colour trade mark and then seek for some alternative legal means to protect rights on colour.


THE TRADE MARKS ACT 1995 (CTH)

The Australian Trade Marks Act 1995 (Cth) defines a trade mark as a sign used to distinguish a trader’s goods or services with other trader’s goods and services. Colour is regarded as one type of sign in the definition.

The key issue determining the success or failure of registration a trade mark is the capability of distinguishing the goods or services. S.41 gives the criteria in three different levels: whether the sign is inherently adapted to distinguish the applicant’s goods or services (S.41 (3)), if not; whether the sign is to “some extent inherently adapted” to distinguish the applicant’s goods or services (S.41 (5)), and whether the mark can be distinguished from the intended use or other circumstance. If the sign is not inherently adapted to distinguish, it falls into S.41 (6), namely wether the sign is capable to distinguish by use before the filling date of registration. A sign can be registered to a trade mark only if it passes the above test.

REVIEWING THE PAST CASES

From the first introduction of the Trade Marks Act in 1995 to present, there were many unsuccessful applications of colour trade mark . Multix , for example, a manufacture of domestic foil containers, failed to register colour red and as the trademark of their aluminium foil products, as well as the colour red as a background and the colour white in printing...

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