On Your Marks, Get Set, Go! The Race To Recognition

The Australian Trade Marks Register is full of life; bursting with a rainbow of colours and a wide range of shapes, sounds, and even smells. It has become a critical focus of many leading businesses as a powerful tool to recognise, record, and protect their brands.

But the race to trade mark registration is tough and one which may take time to finish as Cadbury Schweppes fully understands. It has been running the race since November 1998, when it applied to the Registrar of Trade Marks for registration of the "Cadbury purple" colour in relation to chocolate. Nearly 8 years on, the application remains unresolved.

To further protect its claim to the colour purple, Cadbury also commenced litigation against rival Australian confectionary giant, Darrell Lea, for misleading or deceptive conduct by using a strikingly similar shade of purple. In April last year Cadbury's claim was dismissed.

It was only early last week that the finishing line may have appeared faintly in the distance. But only very faintly. Cadbury has succeeded on appeal and will now have a second chance to run its claim against Darrell Lea – from scratch.

Although Cadbury may appear to be struggling with the race, there are many examples of trade marks that have been successfully registered, protected and have therefore, enabled businesses to establish a reputation in those marks (think of the 'Kodak yellow,' or the 'Australia Post mailbox red and white,' or the shape of 'Nike swoosh' for example).

And the Trade Marks Register's doors are wide and inviting, welcoming not only words, but colours, sounds, and smells.

So have a think about what marks distinguish your business from others and make sure that you have taken adequate steps to properly protect them. Because when the recognition race start gun goes off, you want to ensure that your business is first to the finishing line.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.