Colour And Pills Made A Bad Combination

A recent decision of the Federal Court refused to protect colours applied to product packaging in the context of a claim for passing off on the basis that the use of colour was primarily functional.

The Facts

The action involved claims of patent infringement, passing off and copyright infringement between two competing businesses. Both parties sold pill dispensing products primarily used in nursing home facilities. The products consisted of a bottom tray covered by a clear plastic cover. This note will be limited to the passing off claim.

The claim for passing off related to an alleged trade mark referred to as the Container Sealing Sheet Design that had been used in association with a container sealing sheet for a pill dispenser to sort and segregate pills, tablets or capsules. The trade mark consisted of colour applied to the surface of a sealing sheet as shown below