The High Court of New Zealand in Energy Beverages LLC v Frucor Suntory NZ Limited [2020] NZHC 3296 ruled that energy drink company Frucor Suntory NZ Ltd’s (Frucor) non-traditional green colour trade mark was valid. This decision is a rare example of a New Zealand based Court analysing non-traditional marks and highlighting the difference to Australia’s position. A full copy of the decision can be found here.
Read MoreOn 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.
Frucor Beverages Limited (Frucor), the manufacturer of energy drink, V, has unsuccessfully tried to register a trade mark for the colour green. Last month, Coca-Cola Company (Coca-Cola), the manufacturer of Mother energy drinks, successfully opposed registration of the trade mark filed in 2012 in relation to energy drinks which consisted of the colour green (Pantone 376c), as shown below.
Coca-Cola opposed the trade mark application on the basis that Pantone 376c Green was not capable of distinguishing Frucor’s energy drinks and that the application was defective. While the opposition failed on the latter ground, Coca-Cola was successful in its argument that Pantone 376c Green was not capable of distinguishing V energy drinks from the energy drinks of other traders.
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