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Whiskas Purple Successfully Registered After a Cat Fight in Federal Court

Issued: September 01 2010
Following the landmark decision to allow Cadbury to register five shades of purple as trademarks for its chocolate packaging after a 10-year dispute with Darrell Lea, brand owners are rushing to secure their colour trademark registrations. Wedgewood Limited owns blue for ceramics and porcelain, Telstra has trademarked its yellow phonebooks, Australian Postal Corporation owns yellow for mail delivery services and Kraft Foods Limited owns silver for cream cheese.

Mars Australia recently won a battle in the Federal Court against Société des Produits Nestlé to secure trademark protection for its customised shade of purple (known as the Whiskas Purple) for its cat food packaging.

Nestlé successfully opposed the application in the Trade Marks Office, however Mars appealed the decision of the Delegate of Registrar of Trade Marks to the Federal Court of Australia and was successful after Nestlé dropped its opposition in the final stages of the Appeal. It’s believed that Nestlé struck a deal with Mars to allow them to continue to use purple on their Purina brand cat food.

Mars, the owner of the popular cat food Whiskas had used its Whiskas Purple colour on its cat food packaging and marketing materials since 2000. In November 2002, Mars applied for trademark protection for its Whiskas Purple. The application was accepted for registration, but Nestlé opposed it.

The Delegate of the Registrar of Trade Marks hearing the opposition found that the Whiskas Purple mark did not distinguish Mars’ goods from the goods of other traders. Mars appealed the decision to the Federal Court.

Justice Bennet considered whether the Whiskas Purple was capable of distinguishing Whiskas products, observing that Mars “adopted an entirely new colour as a trade mark and promoted it heavily from the outset with… the clear intention of giving the colour a trade mark significance.”

Justice Bennet found that Whiskas Purple did function as a badge of origin by which consumers identified Mars’ goods in contrast to the goods of other traders.

What does this decision mean for brand owners? Brand owners should register their colour and other non traditional marks given the important role that they can play in a company’s overall branding strategy. However, it should be noted that registration for a single colour will not be easily obtained.

It is very important to develop a good branding strategy from the outset to ensure that the trademark is promoted and used extensively. A trademark attorney should also be involved to ensure that the distinctiveness of the trademark colour can be proven.

About the Author

Alexia Marinos, Senior Associate,
- Gadens Lawyers, Sydney •


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