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Trade marks & your business colour

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You may have seen recent media reports about an attempt by Mitre 10 to protect its corporate colours being used by a competitor.  We are being asked for advice on this subject more frequently – perhaps it is due to a greater number of these situations such as driving past hardware stores (where a colour combination can be a powerful way to attract attention) or online (internet) sales, rather than relying on “static” sales from “high street” shops.

However, ongoing use of specific colours is not just a modern phenomenon.  Historically, colour combinations were known as “the livery” of a family, guild or region.

Business operators often think they can use trade marks to obtain protection of corporate colours but there are limitations to using the trade mark system in this context, as a cursory reading of the total Cadbury “colour purple” story shows. There are ways in which the law can assist with this type of protection, but it does require a strategic approach.

By way of example, if you trade mark the words of your business, but not the colour scheme or the features of any logo, then the law will provide trade mark protection for the words, but you will need to “fall back” on an assortment of legislation for the “passing off” of the other elements of your business.

Most businesses cannot afford to protect every element which may or may not be copied, but a strategic approach allows for choice of colour and feature to secure trade mark protection, when that is an important element to your customer recognition, for instance, in e-commerce and suburban sales.  Word or sound trade mark protection can also be obtained, when that is an important element to your customer recognition such as in fast-moving consumer goods, promotions via radio, orders via telephone and so on.

Your intellectual property strategy requires careful thought about your business, your customers and your competitors, so you can get the protection the law provides to work in favour of you and your business. For more information on developing your IP strategy, contact our Intellectual Property team.

Author: Marianne Dunham

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