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Pantone blunder leaves V flat in court

Friday, 06 July 2018
By Print21
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A mix-up with Pantone swatches has scuppered beverage company Frucor’s attempt to trademark the shade of green used for its V energy drinks, with a federal court ruling highlighting Pantone’s crucial role in branding.

Frucor attempted to trademark the shade of green designated as Pantone 376C as ‘V Green’ in 2012, but its application was knocked back four years later after it was found that a Frucor solicitor had attached a swatch of the wrong green to the original application. The Coca-Cola Company, owner of rival energy drink Mother, opposed the application, arguing that the attached swatch was actually the much darker Pantone 7727C.

Frucor appealed the decision to the Federal Court, saying that it should have been based on the written description of “Pantone 376C” rather than the attached colour, but Justice David Yates knocked it back, noting that though Frucor had been aware of the mistake since 2014, it had made no attempt to amend its application until three years later.

Additionally, Yates ruled in agreement with Coca-Cola that though Pantone 376C was ‘reminiscent’ of V, it was the large V logo that served as the drink’s ‘brand of origin’ rather than the colour. “Frucor’s own use of colour before the filing date shows that, in relation to its own V energy drink range, colour was used to denote varietal differences, and to distinguish products in the range from each other and from its core product – the hero in the range,” he wrote in his decision.

“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. In this way, Frucor’s use of V Green was essentially descriptive, not distinctive in the trademark sense.”

Frucor will not be permitted to appeal or amend its application further.

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