Cats Do Love the Colour Purple

Cats Do Love the Colour Purple

This is an updated version of an old post, click here to see the original.

How Brand Colours Become Trade Marks

If you’ve ever walked down a supermarket aisle and reached for a product purely because of “its” colour, you already understand colour trade marks better than most lawyers. That Veuve Clicquot orange, that Cadbury purple, that “Whiskas purple” you spot from halfway down the pet-food aisle – your brain doesn’t need to read a single word. It just knows.

This blog is for brand owners and marketers who want that kind of recognition – and are wondering if they can actually own a colour.

What is a colour trade mark?

Once upon a time, trade marks were mostly words and logos. In January 2006, Australia’s trade mark laws were clarified to make it easier to register less traditional signs – not just words and logos, but also colours, shapes and sounds – as trade marks, provided they distinguish your goods or services.

The idea is simple: if consumers recognise your brand from a colour alone, that colour can function as a trade mark, just like your name or logo, and you may be able to secure a legal monopoly over it for particular goods or services.

But there’s a catch…

The big catch: distinctiveness

To register a colour as a trade mark, you must show that the colour is truly distinctive of your brand – that, in your market, it effectively points only to you.

In practice, this usually means:

1. The colour is not common in your industry.
2. The colour is not functional (for example, green for mint, blue for low fat, red for chilli).
3. The colour has been used consistently and extensively so that consumers now associate it with you, not just “a product.”
4. If other traders already use the colour, or would reasonably need to use it (for instance, gold or silver for premium confectionery), your chances of registration drop sharply.

A classic illustration is Werther’s Original: the brand was able to register the distinctive shape of its dimpled sweets, but not its “transparent yellow and gold” packaging. Gold was considered too common and competitively necessary in the sweets market. In other words, not remotely “out of left field.”

Mars, Whiskas and the battle for purple

Enter Mars and its Whiskas brand.

In 2002, Mars applied to register its distinctive “Whiskas purple” as a colour trade mark in Australia for cat food. The application was accepted at first, but Nestlé opposed it, arguing that the purple wasn’t unique enough and that other pet-food makers should be free to use purple packaging too.

Mars argued that:

• It used an unusual, non-standard shade of purple.
• It had used that purple very extensively in packaging and advertising.
• It had embroidered the colour into its brand story (remember the “cats prefer purple” line?).

Other pet food brands did not need purple to compete.

Initially, the Trade Marks Office wasn’t convinced. The delegate found the colour did not distinguish Mars’ goods from those of other traders, and Nestlé’s opposition succeeded.

Mars appealed.

On appeal, the Federal Court took a different view. The judge examined years of marketing and packaging evidence and found that Mars had done exactly what brand owners need to do to secure a colour monopoly:

Adopted a specific, consistent shade as a trade mark.

Used it heavily, over time, in connection with Whiskas.

Trained consumers to identify Whiskas cat food by that colour.

The Court accepted that while other pet‑food makers had used purple here and there, they weren’t using it as a trade mark – more as decoration or to differentiate flavours. Whiskas purple, by contrast, had become a brand signal in its own right. The appeal succeeded, and Mars effectively won itself a purple halo in Australia for cat food.

Cats really do love the colour purple – and so do trade mark lawyers.

Why this matters for your brand

If you’re a brand owner, especially in fast‑moving consumer goods, fashion, hospitality or tech, colour can be one of your strongest brand assets. Think:

1. A signature packaging colour
2. A distinctive store fit-out colour scheme
3. A specific hue used across your app, website and marketing
4. The Mars case shows that, with enough groundwork, you can turn that colour into a protected asset. But it also shows how nuanced and evidence-heavy the process is.

You need to think strategically:

Is this colour already common in my industry? Could competitors reasonably say they need this colour? Have we used it consistently, over time, in a way that teaches consumers “this colour = us”?

If the answer to those questions is “yes, yes and yes” (for distinctiveness and consistent use), you may have a valuable colour trade mark hiding in plain sight.

Why DIY is risky with colour trade marks

Unlike a straightforward word mark, colour marks are not “set and forget”: they’re complex, evidence‑heavy and often contested, so going it alone can mean picking a weak or common colour, describing it poorly (for example, via Pantone), failing to supply enough evidence of distinctiveness, or under‑estimating competitors’ rights to use similar shades, whereas a good intellectual property lawyer can test whether your colour strategy really has legal legs, help you build and present strong evidence, draft the description correctly, handle objections or oppositions, and slot your colour mark into a broader brand protection plan that also covers words, logos, shapes and overall get‑up.

Practical tips if you’re thinking about colour trade marks

If you’re brand‑building and colour is part of your DNA, here are some high‑level pointers:

1. Use your colour consistently
   Make it your “hero” colour across packaging, advertising, websites and point of sale.
2. Be deliberate and document it
   Keep records of launch dates, campaigns, sales figures and how the colour is featured.
3. Avoid “obvious” or functional colour choices
   Think twice about colours that have standard meanings in your field (e.g. green for eco, blue for water).\
4. Think about competitors
   If your rivals already use similar colours, your path to monopoly will be much steeper.
5. Get advice early
   Speak to an IP lawyer before you invest heavily in a colour‑centric brand strategy or file an application.

This blog is based on an article: “Cats Do Love the Colour Purple,” was written by intellectual property lawyer Sharon Givoni and first published in PKN Packaging News, where it explored how Mars successfully protected its distinctive Whiskas purple as a colour trade mark in Australia, using that case to explain the broader challenges and opportunities of registering non‑traditional marks such as colours, shapes and sounds, especially for fast‑moving consumer brands. Read more here: CatLikeCoulorPurple-Sept10.pdf

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.