trade mark protection for colour
explains the decision in that case √
The High Court of Australia has recently heard an appeal, Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCATrans 157 (5 August 2014). The appeal was from the decision of the Full Court of the Federal Court in Modena Trading Pty Limited v Cantarella Bros Pty Limited [2013] FCAFC 110, in which the Full Federal Court upheld an appeal against the decision of Emmett J in Cantarella Bros Pty Limited v Modena Trading Pty Limited [2013] FCA 8.
The case concerns whether the trademarks “Oro” and “Cinque Stelle”, meaning “gold” and “five stars” respectively, are distinctive, and whether the two Italian words were used by Cantarella as trademarks.
In September 2010, Modena Trading Pty Ltd commenced importing Italian coffee from Caffè Molinari SpA branded in Australia as ‘Caffe Molinari Oro’ and ‘Molinari Cinque Stelle’. Cantarella sued Modena in the Federal Court of Australia for infringement of…show more content… There had been substantial and presumably stable use since April 2000, which was only a relatively short period of time to establish factual distinctiveness given that the application date was November 2002. Furthermore, the colour was new to the Whiskas range, purple not having been used for any other purpose on the products. There was also a clear intention from the outset to give the colour a trade mark significance by creating “a stronger brand identity for Whiskas”. In part, this was achieved by the block of purple colour created when the product was ranged on supermarket