Trade marks, in the traditional sense, act as a badge of origin which indicates to the consumer where the product is from as well as the quality of the product. Historically, manufacturers of consumer goods have used trademarks in the form of words and logos/devices. More more recently trademarks for consumer goods have extended to shapes, colours, sounds, smells and aspects of packaging or “trade dress”.
Aspects of packaging are an important way for brands to distinguish their goods from others. But what do you do if your product in its raw form is not necessarily packaged such as, for example, fruit and vegetables? It is quite common for producers of fruit and vegetables to provide stickers on their produce to indicate where the product is from together with a word trade mark. But stickers are typically difficult to see and the consumer cannot immediately determine the trade mark or brand associated with produce.
In recent years, a forward-thinking company by the name Fada Pty Ltd (trading as Pacific Coast Eco Bananas) have applied and registered trade marks on the Australian Trade Mark Register is respect of fruit where the trade mark itself consists of a colour applied to one third of a tip of a banana.
Fada Pty Ltd started applying for these types of trade marks a little over 14 years ago and have registrations for the colours blue, green and red as applied to up to one third of the banana, as shown below:
|831634||31 Fresh bananas||The trade mark consists of the colour red as applied to up to one third of a banana as shown in the representation attached to the application form. Provisions of subsection 41(5) applied.|
|852081||31 Fresh fruit||The trademark consists of blue as shown in the representation on the application applied to up to 1/3 of the tip of the banana|
|852082||31 Fresh fruit||The trademark consists of green as shown in the representation on the application applied to up to 1/3 of the tip of the banana|
In 2006, Fada Pty Ltd applied and registered a trade mark in respect of fresh bananas where a visible opaque coating of hardenable material (but in a contrasting colour) was applied to one end of the banana, whereby the coating extends up to one third along the length of the banana.
|1136297||31 Fresh bananas||The trade mark consists of a visable opaque coating of hardenable material and in a contrasting colour applied to one end of a banana whereby the coating extends up to one third along the length of the banana.|
Recently, Fada Pty Ltd have taken the further step of successfully registering the following trade mark in respect of fresh fruit and fresh vegetables :
This registered trade mark is not limited to any particular type of fruit/vegetable nor any particular colour applied to the end of the product. Provided Fada Pty Ltd use and renew the trade mark, they have a monopoly on this aspect of packaging for as long as they like.
So think carefully and creatively about how you might distinguish your goods and services from other traders and don’t make the mistake that the trade mark system is only for words and logos – you may well be able to carve out a monopoly right which gives you an edge over your competitors.