Can You Trademark A Colour?

Many Canadians are aware that they can protect their brand names and logos. Many are unaware that a trademark for a brand colour can also be filed. Trademarking a colour is not as easy as it sounds. Though the Canadian law permits trademarking of colours, the law in this area is far more complex.

Trademark

According to the Government of Canada website, "trademarks can be one or many words, sounds or designs used to distinguish the goods or services of one person or organization from those of others. There are three types of trademarks – an ordinary mark, a certification mark, and a distinguishing guise". When you register a trademark you get the sole right to use the mark for 15 years in Canada in association with the goods and services you provide.

Trademarking a Colour

Colours can play a vital role in affecting the psyche of consumers. Consumers tend to associate various brands with their respective colour schemes. For example, people associate McDonald’s with red and yellow, the Shell gasoline with yellow, and McCain foods with black, white and yellow. Colours are active inducers of brand recognition for consumers. It is for this reason that business owners have been trying to protect this aspect of their trademark.

A colour claim is generally a limitation on the registered mark, as it leaves the business owner with the sole choice of using the registered mark in the same colour. However, if the colour used in a symbol or a logo is a key distinctive feature, then a colour claim can be made. After the recent amendments to the trademarks Act, it is easier to register a trademark on colours.

Colour Claims in the Past

Imperial Tobacco had registered a trademark, to protect the colour ‘orange’. This application was contested by JTI MacDonald, under the pretext that the colour claimed was not specific and the design claimed was not distinctive. But the Federal Court passed the judgment in favor of Imperial Tobacco. They concluded that "A colour alone may be trademarked by the Canadian Law and is not a distinguishing guise. The Federal Court relied on Simpson Strong Tie-Co vs Peak Innovations Inc., in which the colours green and grayish green were trademarked with regard to fastener brackets for attaching deck boards". Examples of other cases are Christian Louboutin vs Eves Saint Lauren, Heinz has acquired a trademark on the colour turquoise and Cadbury has trademarked a shade of purple.

Every conscientious business owner should protect his intellectual property from being misused. At Prowse Chowne LLP, we specialize in the services of protecting a person’s or business’s intellectual property rights. Our legal experts guide you through choosing the appropriate intellectual property protections.