Not easy being green: BP loses bid to trademark colour

Yolanda Redrup and Patrick Durkin
July 3, 2014
The Age
Multinational British Petroleum, commonly known as BP, has lost its 12-year battle to trademark the colour green which dominates its sunburst logo.
BP’s attempt to monopolise green, also known as Pantone shade 348C, was knocked back by IP Australia, after a long-running battle with Woolworths, which considers the green shade in its apple logo too similar.
Some brands have successfully trademarked colours in the past, but the onus is on the company to ­demonstrate the colour is widely ­associated with the brand.
Banana company Fada successfully trademarked the colour red in respect of the wax tips of bananas, with the court ruling the colour made the bananas more distinguishable.
Christian Louboutin has also ­trademarked the red sole in women’s high heel shoes and the owners of horse Black Caviar have registered the ­colours of the racing horse’s silks.
The Australian designer responsible for the design of Woolworth’s green apple logo, Hans Hulsbosch, said trademarks were getting “out of control” and was glad BP’s green was not approved.
“Designers should be able to use whatever colour they like, but ­trademarking is a hard issue,” he said. “We work with most of Australia’s top brands and everything we do has to go through an IP lawyer these days to ensure it’s unique and can’t be ­challenged . . . it’s getting harder and harder to create a unique identity.”
Mr Hulsbosch, executive creative director of design firm Hulsbosch, has also developed the brand identities for Virgin Australia, Qantas and Rebel.
He said if too many colours were owned by brands, it would become ­difficult to design and innovate.
“When colours, smells and shapes are owned by companies it becomes harder and harder for us to stay on top of the game and create something unique,” he said.
BP first attempted to trademark the colour green in the early 1990s, but has been met with rejections by the trademark office and the Federal Court. In October last year IP Australia rejected BP’s application for the sole use of green for the strip lights on its petrol stations. This application was also stymied by Woolworths. It was rejected on the grounds the colour did not distinguish BP’s goods or services from others.
While the petroleum giant has ­struggled to trademark the colour in Australia, it has succeeded in Britain and Europe.
A spokesperson for BP said the­ ­colour green was “central to the BP brand since the 1930s and we believe it should be protected”.
Woolworths was contacted for ­comment, but the supermarket failed to respond prior to publication. A Woolworths spokeswoman previously said no one owned the colour green. “We believed that a general claim on the colour green was unreasonable,” the spokeswoman said.
Phillips Ormonde Fitzpatrick patent and trademarks attorney Mark ­Williams said companies – both small and large – were lodging applications for colours to protect their branding.
“It goes to show colour marks can be powerful and provide you with an edge over your competitors,” he said.
BP has until July 17 to appeal.
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