The Coca-Cola Company wins
green trade mark fight
Justice Yates handed down his
decision in the appeal between
Frucor Beverages Limited and TCCC
on Monday 2 July, 2018 1 . Frucor had
sought to register a particular shade
of the colour green as a trade mark
in relation to energy drinks. TCCC
had opposed the application and
had succeeded in its arguments
before the Registrar of Trade Marks.

Frucor appealed the Registrar’s
decision and the appeal was heard
last year. TCCC argued that Frucor
had not demonstrated that the
colour green used on the V brand
Energy drinks had operated as
a trade mark. It was telling that
Frucor sold other variants of its
energy drinks in different coloured
packages. Its lemon “V” energy
filed did not include a swatch
drink was, for example, sold in
having the correct colour green.

a yellow container not a green
There was disconformity between
one. Justice Yates agreed.

the Pantone number mentioned
The Court was also of the view
on the application and the actual
that consumers would see the
representation attached to the
“V” brand as the trade mark and
application. The Court found that
would associate green with the
this disconformity was fatal. Frucor
core product in the “V” offering, but
couldn’t establish that the mark
would not see the colour as a trade
was distinctive when it was
mark. The survey evidence
not clear what shade of
presented by Frucor did
green was the subject
not assist matters, as
of the application.

Justice Yates did
Frucor attempted
not consider that
to amend its
the questions
The crucial
issue application to
were directed
correct this
[was] whether
at the crucial
error, but Justice
issue of whether
consumers saw
Yates found that
consumers saw
the colour
as correction of a
the colour as
an indication
of mistake was a
an indication of
matter for the
trade origin.

trade origin.

Registrar, and
To make matters
in any event,
worse for Frucor,
amendment of this
the application when
type was now precluded
because of the delay.

Whilst the Trade Marks Act
introduced the possibility of
colours being registered as trade
marks in 1995, this is another
example of the difficulties inherent
in showing that a colour truly
operates to indicate trade origin.

Inspire September 2018
TCCC has scored a big
victory over Frucor
in its battle over
the colour green.

04 Chris Schlicht, Deputy
Managing Partner
BSc LLB FIPTA
chris.schlicht@pof.com.au Frucor Beverages Limited v The Coca-
Cola Company [2018] FCA 993
1