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The end of the rainbow?: Recent judicial decisions on the registration of colour trade marks

Price, David (2007). The end of the rainbow?: Recent judicial decisions on the registration of colour trade marks. In: Adams, Michael, Barker, David and Poludniewski, Katherine 62nd ALTA Conference, Perth, WA, 23-26 September 2007.

Document type: Conference Paper
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Author Price, David
Title The end of the rainbow?: Recent judicial decisions on the registration of colour trade marks
Conference Name 62nd ALTA Conference
Conference Location Perth, WA
Conference Dates 23-26 September 2007
Conference Publication Title ALTA Conference Proceedings: Law and Public Policy - Taming the Unruly Horse?
Editor Adams, Michael
Barker, David
Poludniewski, Katherine
Place of Publication Australia
Publisher Australian Law Teachers Association (ALTA)
Publication Year 2007
End Page 25
Field of Research 1801 - Law
HERDC Category E2 - Conference Publication - Full written paper, non refereed proceedings (internal)
Abstract The UK’s Patents, Designs and Trade Marks Act 1883 , introduced provision for trade marks in colours. However, notwithstanding this statutory provision, there was an ongoing conservative approach to the approval of colour trade marks. In 1887, the Chancery Division considered an application for the registration of the colours blue, white and red in the form of a Tricolor , on a label for a well-known brand of French coffee. 1 In handing down his judgement, Kay J remarked:

“...you cannot register a mark of which the only distinction is the use of a colour, because, practically under the terms of the act, th
at would give you a monopoly of all the colours of the rainbow".2

The application was refused, but on the grounds that the trade mark lacked distinctiveness independently of the colour, and that the colour should, in essence, be deemed an accident.

This paper examines the recent judicial decisions on the registration of colour trade marks in respect of two longstanding and contentious cases, namely BP Amoco plc (BP) in respect of the colour green and Cadbury Schweppes (Cadbury) in respect of the colour purple. With both possibly well nigh at the end of their respective litigation rainbows – with nary an oil strike or purple patch in sight, they have been the catalyst for the establishment of new parameters for the distinctiveness requirements of colour trade mark registration.
Description for Link Link to conference paper
URL http://www.alta.edu.au/2007-published-alta-conference-papers.aspx
 
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Created: Fri, 12 Sep 2008, 08:35:25 CST by Administrator