Frucor given red card over ‘V’ green trade mark

On 2 July 2018 the Federal Court of Australia dismissed Frucor Beverages Ltd’s appeal regarding the registrability of the colour Pantone 376C with respect to the energy drink ‘V’.

The Frucor mark in question, Australian trade mark no. 1496541, was first filed with IP Australia on 5 June 2012. Registration of this mark was opposed by the Coca Cola Company on two grounds. First, Coca Cola alleged that while the trade mark was filed for Pantone 376C, the swatch attached to the application that visually demonstrated the colour was not actually Pantone 376C. Furthermore, it argued that regardless of the colour actually filed, it was not capable of distinguishing Frucor’s goods from other similar goods and services. The Registrar of Trade Marks dismissed the first ground of opposition but supported the second and the registration was denied.

On appeal, Frucor failed on both accounts. It argued that despite the fact that the swatch did not match the description of the colour, it was unambiguous that it intended to trade mark Pantone 376C. Justice Yates did not agree and refused to allow either Frucor or the Registrar to amend the application.

Ultimately it was found that Frucor’s use of the colour green did not function as a trade mark. Justice Yates agreed with Coca Cola’s submission that the use of green on V packaging denoted a varietal difference between flavours of drinks given that other types of V drinks were packaged in other colours. In this sense the colour green was descriptive and did not function as a trade mark. The expert survey evidence suggesting that consumers associated Pantone 376C with V did not sway him.

* Thanks to seasonal clerk Karen Liu for preparation of this blog.

By Chris Round and Karen Liu

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