Can you register a colour as a trade mark?
A single colour can attain registration as a trade mark so long as it acts as a badge of origin for the goods or services (i.e. the colour is able to distinguish the applicant’s goods and/or services from those of other traders). However, where that single colour is the naturally occurring colour of the product, any attempt to register that colour as a trade mark is highly likely to fail.
It was established by Mansfield J in Philmac Pty Limited v The Registrar of Trade Marks  FCA 1551 that for a single colour applied to the goods themselves, the colour [must] not serve an economic function: that is, it [must] not [be] the naturally occurring colour of a product and registration of that colour in respect of that product would not thereby submit competing traders to extra expense or extraordinary manufacturing processes in order to avoid infringement.
Therefore, the beer industry can rest easy as it is highly unlikely East 9th Brewing’s trade mark application for the colour of beer will attain registration. Additionally, even in the highly unlikely event that East 9th Brewing were able to attain registration, to be able to enforce their trade mark rights against third parties (i.e. the wider beer industry), East 9th Brewing would have to demonstrate that the other beer maker is using the colour of beer as a trade mark. This is also extremely unlikely unless the beer is sold in a clear container with no branding; or it is poured from a tap head without branding and the beer tap itself is transparent so the colour of the beer can be seen prior to the beer being poured.
Lastly, provided the other brewers are using registered trade marks on the packaging of their beers, they’ll have nothing to worry about: using a registered trade mark is a complete defence to trade mark infringement.
It appears the East 9th Brewing’s trade mark application has been a very successful marketing stunt. It also serves as a strong reminder that securing registration of your trade marks will ensure you don’t have to worry about infringing someone else’s trade mark rights.
If you’d like to learn more about the registration of trade marks or you’d like us to assist you with securing registration of your trade mark, please contact Mark Metzeling or Macpherson Kelley’s Intellectual Property Team.