Colours and Trade-Marks.

• Author: Marquez-Stricker, Francisco

We live in a world of colour. From the brightest shade of red to the darkest hue of violet, colours can influence your mood, evoke your emotions, and even establish certain mental connections. A bouquet of red roses may make you think of romance and Valentine's Day, while the same bouquet in a sharp white could instantly trigger thoughts of churches and weddings. The colour yellow may evoke thoughts of sunshine and spring time. And seeing a bright purple wrapper on the shelf of your local grocery store may make you think of.... chocolate? Or at least that's what Cadbury, with its signature purple wrappers on its candy products, is hoping to accomplish.

Indeed, Cadbury is hardly alone in using colour as part of its branding efforts. Producers have long recognized the power of colour to create instant recognition for their products. UPS has branded all of its trucks and uniforms with a particular shade of brown. Mattel consistently uses hot pink for all of its Barbie products. Tiffany's uses its signature robin's egg blue (Pantone #1837 to be exact) in association with the majority of its products. But what, if any, protection does trade-mark law afford a producer over its signature colours? This article will provide a brief overview of the history of trade-mark law as it relates to colours, as well as the impact of proposed changes to the Canadian Trade-marks Act.

An Overview of Trade-marks

To begin with, it's useful to define trade-marks generally. Trade-marks are "marks" that are used to distinguish the wares or services of one provider from those of another. They generally serve the dual purpose of allowing a consumer to know where their goods or services are coming from, while allowing producers to accumulate goodwill. Put more simply, trade-marks are the words, phrases or logos that producers use to help consumers identify their goods or services.

The most famous examples of trade-marks are the names and logos which we encounter on a daily basis, such as the name "Coca-Cola", McDonald's golden arch logo, Starbucks green mermaid logo, or Google's colourful wordmark. Slogans like "Just Do It" for Nike and "Eat Fresh" for Subway similarly qualify for trade-mark protection. Trade-mark law also protects the shape of containers in which goods are protected (i.e. a "distinguishing guise"), such as the shape of the Coca-Cola bottle.

Over the last several decades, however, trade-mark law has begun to afford protection to more obscure forms of...