Frucor’s V energy drink and Energy Beverages’ Monster Energy both feature colour green as distinctive markings on their product. Legal arguments over improper competitive use were compounded by a stuff up at IPONZ over Frucor’s trademark colour registration.
Intellectual Property Office of New Zealand is a government body, part of Business, Innovation and Employment. It acts as a trade marks registry. IPONZ accepted for registration a colour trade mark by Frucor Suntory, colour green Pantone 376C for use on cans and promotional material advertising its V energy drink. Frucor has held this colour mark since 2008. IPONZ mistakenly recorded on the register a colour swatch of the incorrect shade green as representing Pantone 376C. Competitor Energy Beverages swooped. It argued Frucor had no legal protection to colour green for its energy drinks and that its 2008 trade mark rights be removed from the register. Trade mark law requires a registered mark to be precise and to lack ambiguity.
The High Court ruled Frucor’s 2008 colour trade mark valid. Its application was not ambiguous. The colour swatch presented with its application was that of Pantone 367C. The error lay with IPONZ which copied and uploaded a darker shade of green than that being trademarked. The court was told Frucor has applied to have the register corrected.
Ironically, Frucor’s claim to a Pantone 367C colour trade mark across the Tasman was dismissed in the Australian courts. Its registration in Australia was ambiguous. It filed for registration a copy of the mismatched registration sitting on the New Zealand register; carrying across the Tasman and submitting in its own name the error made by IPONZ.
Energy Beverages LLC v. Frucor Suntory New Zealand Ltd – High Court (14.12.20)
21.014