Your brand’s colour can be the first thing customers notice - and remember. Think of a distinctive shade on packaging, uniforms or your website that immediately signals who you are before a single word is read.
So, can you actually protect that colour from competitors? In Australia, the answer is “sometimes”. Colour trade marks are possible, but the law sets a high bar and you’ll need the right strategy to make it work for a small business.
In this guide, we’ll unpack how trademarked colours work in Australia, when they’re accepted, the risks of using someone else’s registered colour, and practical steps to protect your brand’s look and feel.
What Does It Mean To Trademark A Colour In Australia?
In Australia, a trade mark is a sign used to distinguish your goods or services from others. A “sign” can be words, logos, shapes, sounds - and yes, colours (including a single colour or a combination).
When you register a colour as a trade mark, you’re not claiming a monopoly over that colour in every context. Instead, you’re seeking exclusive rights to use that colour as a brand identifier for specific goods or services, within particular classes, so that consumers recognise it as “you”.
Two key points to understand up front:
- Distinctiveness is crucial: A colour must function as a badge of origin, not simply decoration. If a colour is common or needed by others in your industry (e.g. green for eco products, blue for water), it’s harder to register.
- Scope is limited by classes: Your rights attach to the list of goods/services you nominate. Choosing the correct classes matters, which is why understanding trade mark classes is a key early step.
Can You Own A Colour? When Colour Trade Marks Are Accepted
Colour trade marks are granted infrequently because colours are often seen as decorative or descriptive. However, there are clear scenarios where registration is more likely.
When Colour Trade Marks Tend To Succeed
- Long, extensive use has built strong brand recognition in that colour (often supported by sales figures, advertising spend and consumer evidence).
- The colour is unusual for the industry and has no functional purpose (it’s not needed to describe the product, safety standards, or an industry norm).
- The application precisely defines the colour (often with a Pantone or RGB/CMYK reference) and the context of use (e.g. on packaging, on the sole of footwear, on delivery vans).
When Colour Trade Marks Usually Struggle
- Competitors reasonably need that colour to describe or present similar goods (e.g. using brown for coffee products or silver for metallic goods).
- The colour has a functional or informational role (e.g. red for hazard signage).
- Evidence of use is limited, recent or geographically narrow without broader consumer recognition.
Bottom line: The more your customers associate the colour with your business - and the less your industry needs that colour for everyday use - the better your prospects.
When Should Small Businesses Consider Colour Trade Marks?
For many startups, registering a word mark (your business or product name) and a logo is the best first move. Colour trade marks are a strategic add-on when colour is doing heavy lifting for your brand.
Consider applying for a colour mark if:
- Colour is central to your brand identity and is used consistently across packaging, signage, uniforms and digital assets.
- Customers regularly mention “the purple bottle” or “the orange vans” - a sign they identify you by colour alone.
- You’re investing in national marketing and want to deter lookalikes early.
- You have solid evidence that the colour is recognised as your brand in your market (acquired distinctiveness).
If you’re still building recognition, it’s often smarter to lock in foundational protections first. Many businesses start with a standard word and logo application via register your trade mark, then revisit colour once brand equity grows.
How To Protect A Brand Colour: Step-By-Step
If colour is core to your brand strategy, here’s a practical roadmap to safeguard it - whether now or in future when your recognition is stronger.
1) Lock In A Consistent Colour Standard
Choose an exact shade (e.g. Pantone 186 C, or a precise hex code) and use it consistently across all consumer touchpoints. Consistency builds recognition - and later, it supports your evidence that the colour is your brand’s signature.
2) Build Distinctiveness Through Use
Make colour prominent in your branding. Feature it on packaging, storefronts, uniforms, vehicles and social channels. Keep records of your marketing spend, sales growth and customer feedback that references “the colour” as part of brand recall.
3) Conduct Clearance Searches
Before you invest heavily, check for conflicting trade marks and market use in your industry. A clearance search should cover word and logo marks, but also colour-centric marks in your classes, plus common law use that could pose a risk.
4) File Core Word/Logo Marks First
Registering your business or product name (word) and icon (logo) often gives the strongest, broadest brand protection with faster acceptance. These filings also demonstrate your brand strategy, which can support a future colour application.
5) Prepare Evidence Of Acquired Distinctiveness
Many colour applications rely on “acquired distinctiveness”: evidence that consumers have come to recognise your colour as your brand. Useful evidence includes:
- Sales figures over multiple years and regions.
- Advertising spend, campaign details and reach metrics.
- Photos showing consistent colour use across products and signage.
- Media coverage or awards that reference your colour.
- Statutory declarations from customers or industry participants.
6) Choose The Right Classes And Draft A Precise Description
Your specification should focus on the goods/services where colour acts as a brand indicator. Get the classes right and keep the description tight (e.g. “The colour as applied to the entirety of the product packaging for ”). Understanding trade mark classes will help you avoid gaps or overreach.
7) File Your Colour Application And Respond Strategically
Expect an examination report to question distinctiveness. That’s normal. Respond with clear arguments and supporting evidence that the colour functions as a trade mark in your market. This is a stage where many small businesses benefit from legal support.
8) Monitor, Enforce And Educate
Once you have registration, watch the market. If a competitor starts using a confusingly similar colour in your space, early action (such as a firm but fair cease and desist letter) can deter escalation. Internally, maintain brand guidelines so your team and suppliers use the colour consistently.
Legal Risks: Using Someone Else’s Trademarked Colour
If another business has a registered colour mark, you need to tread carefully in the relevant classes. Infringement generally turns on whether your use is “substantially identical or deceptively similar” to the registered mark in connection with the same or similar goods/services.
How Infringement Gets Assessed
- The overall impression on the average consumer matters - would they be caused to wonder if the products come from the same source?
- Context of use is critical - is the colour on packaging, labelling, vehicles, uniforms or the product itself?
- Similarity of goods/services and trade channels - the closer they are, the higher the risk.
Even if the colour isn’t registered, you could still face action under Australian Consumer Law (ACL) for misleading or deceptive conduct if your look-and-feel creates confusion about source. The prohibition in section 18 of the ACL applies broadly to branding and advertising, so colour choices can’t mislead consumers about who made or endorsed a product.
In short: do your due diligence and get advice early, especially if you’re entering a market where a competitor’s colour is strongly associated with their brand.
Alternatives And Complements To Colour Trade Marks
Colour marks are powerful when you can get them, but they aren’t the only way to protect a distinctive brand. Most small businesses should layer multiple IP and contract tools.
Register Your Word And Logo Marks
These are the “must have” registrations for most brands - they’re usually easier to obtain, faster to enforce, and they can cover a wide range of uses. If you’re just getting started, align your filings with how you actually brand your products and services via register your trade mark.
Consider Product Design Protection
If your distinctiveness comes from the shape, pattern or configuration of a product or packaging (rather than colour alone), a registered design application may be a better fit. Designs protect visual features of a product’s appearance, which can be the core of your “look”.
Use NDAs When Sharing Brand Concepts
When briefing agencies, printers or manufacturers about your brand update or new packaging, a simple Non-Disclosure Agreement helps keep your concepts confidential until launch. This won’t create trade mark rights, but it reduces the risk of leaks or copycats during development.
Lean On The ACL For Lookalike Problems
Even without registration, the ACL prohibits businesses from misleading consumers by mimicking another brand’s overall get-up (colour, packaging, layout). If someone is trading off your reputation, action under the ACL’s misleading conduct rules (including section 18) can complement your trade mark strategy.
Enforce Early And Keep Records
If competitors start edging into your colour space, keep screenshots, dates and examples. Often, a well-prepared cease and desist letter that sets out your rights and evidence is enough to resolve things quickly and commercially.
FAQs About Trademarked Colours For Small Businesses
Do I Need To Prove Customers Recognise My Colour?
Usually, yes. Single colour marks often rely on “acquired distinctiveness” - evidence that customers see that colour as your brand. Strong, long-term use and data make a difference.
Should I File For Colour Before I’m Well Known?
It’s possible, but much harder to get accepted. Most small businesses prioritise word and logo marks first, then pursue a colour mark once recognition is established.
Can I Claim Two-Tone Colour Combinations?
Yes, combinations can be registrable if the pairing and arrangement function as a brand sign and not just decoration. Precision in your description is key.
What If A Competitor Uses A Slightly Different Shade?
Courts look at the overall impression. If consumers could be confused, a small shade difference might not save them. Context and similarity of goods are crucial.
Simple Compliance Tips When Using Colour In Branding
- Document your colour choice with a clear reference (Pantone/Hex) and build a brand guideline for internal use and suppliers.
- Use colour consistently and prominently so it functions as a badge of origin, not just decoration.
- Run searches before launch to reduce infringement risk - look for colour marks and strong brand get-ups in your classes and market.
- File core trade marks (word and logo) promptly, then consider colour once your evidence of recognition is compelling.
- If your distinctiveness is mainly about shape or packaging, consider a registered design application as part of your strategy.
- Keep an eye on the market and act early with a commercial approach - often a polite, well-structured cease and desist letter resolves issues without litigation.
Key Takeaways
- Trademarked colours are possible in Australia, but they’re granted sparingly - distinctiveness and strong evidence of recognition are essential.
- For most small businesses, registering your word and logo marks is the best first step, with a colour mark considered later as brand equity grows.
- Your rights are limited to the goods/services and classes you select, so get your scope and classes right at filing.
- Using a competitor’s distinctive colour can risk trade mark infringement and breaches of the ACL’s misleading conduct rules, even if the colour isn’t registered.
- Layer your protection: combine trade marks with tools like a Non-Disclosure Agreement during development and consider a registered design application if shape or packaging drives distinctiveness.
- Monitor and enforce early - a targeted, evidence-backed cease and desist letter can stop copycats before they damage your brand.
If you’d like a consultation on protecting trademarked colours and your brand strategy in Australia, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
