The colour of beer

Corporate & Commercial 23 March 2018

In a decidedly marketing stroke of genius, a Brewery has filed a trade mark application for the colour of beer.  Specifically, Pantone 142, or more easily described as:

The application was filed in late February 2018 and as such, the Applicant has no indication of what obstacles may lay ahead.

Trade Marks Office

Under section 41 of the Trade Marks Act, the Trade Marks Office may well object to the application on the basis that other breweries will need to use and should be entitled to use Pantone 142 (or similar) in relation to beer and any trade mark registration under class 32.

Whilst it is possible to trade mark a colour, for instance, Cadbury famously obtained registration of their colour purple (Pantone 2685C), there must be substantial evidence of the use of the trade mark by the Applicant company, to the point where consumers associate the Applicant company with the colour in question.

In this instance, it is understood that the Applicant intends to use this Pantone colour in relation to a beer that has only recently been released, appropriately named “Doss Blockos the colour of beer”.  Given that this particular beer has only recently been launched, the Applicant may well have difficulty asserting that it has developed the reputation in the marketplace required to satisfy the Trade Marks Office to grant acceptance.

The Trade Marks Office does not allow colour marks to be registered which are the natural colour of goods through the manufacturing process.

Other Breweries

In the event that the application proceeds to acceptance, it will then be advertised for two (2) months during which other breweries, or anyone with a legitimate claim, may oppose the application.  We can expect that almost any beer maker in the country, and abroad would not want this application to proceed to registration.

Why bother?

With the odds stacked against this micro-brewery, why would they attempt to trade mark the colour of beer?  All we can say to that is, we are talking about them and they have gained significant publicity, which could be the main objective.

If you require advice or further information in relation to any of the matters discussed in this article, please contact our Corporate & Commercial team on 03 5273 5263.

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