By Jenny Noyes
It's good to be green, especially if you're an energy drink. But a trademark war between the maker of V Energy drinks and Coca-Cola proves it's also good to be attentive to detail.
Frucor Beverages has lost its fight to trademark the signature green of its V Energy range, after attaching the wrong colour swatch to its initial application six years ago.
The maker of V Energy drinks has been unable to trademark its signature green. Credit: Joe Armao
Had it been successful, Frucor's 2012 application to IP Australia would have stopped other companies from using the colour on their energy drinks.
But its application was fiercely opposed by Coca-Cola, on the grounds the colour was already being used by V's competitors, including the "Green Storm" variety of Coca-Cola's Mother energy drink.
The company also argued that Frucor's application was "fatally flawed" because it attached the wrong shade of green to its original bid.
A 2016 ruling went in favour of Coca-Cola, prompting Frucor to take the matter to the Federal Court.
On Monday, Frucor's application was denied on appeal – its original error indeed proving fatal.
The company accidentally submitted the swatch on the right. Credit: Pantone
The colour Frucor sought to trademark was Pantone 376 C, but it mistakenly attached a swatch of the Pantone colour 7727 C to its applicaton, a much deeper and cooler green.
Frucor tried to argue that, because it submitted a written description of the colour as 376C, the erroneous swatch should be disregarded, but Federal Court Justice David Yates disagreed, finding that Frucor's application "was fatally flawed" because there was no way for a person inspecting the register to tell whether the swatch or the description were correct.
Coca-Cola's "Green Storm" variety of Mother energy drink.Credit: Coca Cola
Even discounting this fatal flaw, Justice Yates sided with Coca-Cola, finding that the colour is not a true trademark, but rather it hints at the colour of the drink itself – like other green soft drinks, including Mother.
"Although Frucor’s use of V Green was pervasive and no doubt fundamental to its whole marketing strategy, it was, nonetheless, reminiscent of its core product," he said.
"In this way, Frucor’s use of V Green was essentially descriptive, not distinctive in the trade mark sense."