A Melbourne Brewer, East 9th Brewing Co., has recently filed a trade mark application to register an amber colour for beer.
Although the Australian Trade Marks Act 1995 permits the registration of a colour or combination of colours as a trade mark, very few companies have successfully obtained registration for ‘colour’ marks in Australia. One such company is Cadbury, which has registered the colour purple, as approximated by reference PMS2685C in the Pantone Colour Formula Guide, for chocolate.
East 9th Brewing Co. has applied to register the amber colour Pantone 142 for ‘Beer; non-alcoholic beverages (except non-alcoholic beer); ale’. However, one important difference between Cadbury’s registrations for purple and East 9th Brewing’s application is that Cadbury had many years extensive use of the colour purple on its packaging for chocolate before applying for trade mark registration. Also, Cadbury’s applications had to withstand a strong opposition by Darryl Lea before registration.
A further distinction is that Cadbury’s colour purple is not a natural colour for chocolate, whereas amber is a colour that is typical of many beers, as in the phrase ‘Amber Nectar’ which has been used by some brewers as a slogan in relation to their goods, such as ‘Fosters-The Amber Nectar’.
It is very unlikely that IP Australia will accept the trade mark application by East 9th Brewing Co., unless the applicant can provide extensive evidence of use of its particular amber colour as a trade mark that clearly establishes that its amber colour is capable of distinguishing the beer of East 9th Brewing Co. from beers of other brewers. Even if accepted by IP Australia, the trade mark application is likely to provoke strong oppositions from other brewing companies.
It appears that East 9th Brewing Co. has applied for registration of the colour amber primarily as a publicity stunt, with virtually no chance of success. It has apparently worked with Australian street art company, Ironlak, to identify the colour of its DOSS BLOCKOS Pale Ale. A related company of East 9th Brewing Co., Sausage Incorporate Pty Ltd, has a recently accepted Australian trade mark application for ‘The Colour of Beer’ which East 9th Brewing Co. uses as a slogan on its beer cans.
One of the owners of East 9th Brewing Co., Stephen Wools, is a bit tongue in cheek on whether its trade mark application for the amber colour is a publicity stunt. ‘Well who knows what this might mean for the beer industry. Maybe Heineken, VB or XXX Gold will have to tweak the colour of their liquid to avoid any trade mark infringements. They might own the taps pouring the beer but we own the colour of beer’, commented Stephen Wools.
It will be interesting to see what is the ultimate fate of the trade mark application for the colour amber in relation to beer. Our prediction is that IP Australia will refuse to register the mark because it is not distinctive and, in the words of Lord McNaughten in one of the earliest cases on trade marks relating to beer, ‘Thirsty folk want beer, not explanations’, (RPC 8  40 at 368).
If you have any further questions or require expert advice, please don't hesitate to contact us.