When you think “trade mark”, you probably picture a business name or a logo.
But in New Zealand, a trade mark can also be a colour (or a specific colour used in a particular way) - and colour trade marks can trip you up when you’re designing branding, packaging, websites, uniforms, signage, or social media content.
This update reflects how branding disputes and IP enforcement show up in modern marketing (especially online), and why it’s worth checking colour-related trade mark risks before you spend money on a brand rollout.
Below, we’ll break down what a colour trade mark is, how it works in practice, what to look out for, and the practical steps you can take to protect your business (and avoid accidentally stepping on someone else’s rights).
What Is A Colour Trade Mark?
A colour trade mark is a trade mark that protects a colour (or a combination of colours) as a badge of origin - meaning consumers see that colour in that context and think of a particular business.
In trade mark terms, it’s not the colour by itself in the abstract. It’s the colour used in relation to particular goods or services, often in a specific placement or presentation.
For example, a trade mark might cover:
- a particular shade of colour used on product packaging
- a colour applied to the body of a product (where that colour acts like a brand identifier)
- a combination of colours used together in a consistent way on labels or marketing
- a colour used for uniforms, store fit-outs, or signage (in the right circumstances)
Colour trade marks are part of broader “non-traditional” trade marks, which can also include shapes, sounds, smells (in theory), and other distinctive signs.
In New Zealand, trade marks are governed by the Trade Marks Act 2002, and applications are assessed through the Intellectual Property Office of New Zealand (IPONZ). The key concept is always the same: does this sign distinguish one trader’s goods or services from another’s?
Can You Really Own A Colour?
You can’t “own” a colour in every context.
What you can potentially protect is a colour (or colour scheme) as used for certain goods/services, where that colour has become distinctive of your brand in the eyes of consumers.
That’s why colour marks often become relevant for businesses with strong, consistent brand presence - and why newer businesses need to be cautious when choosing colours that are already strongly associated with someone else in your industry.
How Do Colour Trade Marks Work In Practice?
Colour trade marks can be surprisingly powerful, but also harder to obtain and enforce than standard word or logo marks.
The practical issues usually come down to distinctiveness and scope.
1) Distinctiveness: The Biggest Hurdle
For many industries, colours are common and functional. If everyone uses similar colours (or the colour has a practical purpose), it’s harder to prove that a colour is uniquely associated with one business.
For example:
- Green for eco products might be seen as descriptive rather than distinctive.
- Red for “sale” signage is common and may not distinguish one retailer.
- Blue for water-related services might feel generic.
Where a business succeeds with a colour mark, it’s often because the colour has been used heavily and consistently over time, supported by:
- advertising spend and brand campaigns
- consistent packaging and design guidelines
- evidence of consumer recognition
- market share and distribution
2) Scope: It’s Usually Narrower Than You Think
Even if a colour mark is registered, it doesn’t automatically mean others can’t use that colour at all.
Typically, the real legal question is whether another party’s use is likely to confuse consumers in relation to similar goods or services.
This is where businesses get caught out: you might think you’re “just choosing a colour palette”, but if you’re in the same space and your overall branding looks and feels too close, the colour can become a key part of a trade mark dispute.
3) Colours Often Show Up In Wider Brand Disputes
Colour rarely acts alone. Disputes often involve a mix of brand features, like:
- colour + layout of packaging
- colour + a particular font style
- colour + a pattern or background device
- colour + a name that “sounds similar”
That means even if a competitor can’t stop you using a colour on its own, the combined “look and feel” might still create legal risk.
Why You Should Watch Out For Colour Trade Marks (Even If You’re Not Copying Anyone)
Most founders don’t set out to copy another business. The problem is that colour choices are often driven by trends, templates, and platform defaults - and those can lead to accidental similarity.
Here are the main risk areas we see for NZ businesses.
Packaging And Product Design Can Create Fast, Costly Problems
If you sell physical products, colour is one of the first things customers notice on shelves and online listings.
That makes packaging colour a common trigger for:
- trade mark opposition (when you try to register your brand)
- cease and desist letters
- platform takedowns (for example, if a marketplace receives an IP complaint)
- expensive reprints and relabelling
Imagine you’ve already paid for packaging runs, product photography, and retail placements - and then you’re told you need to change the dominant colour because it’s too close to a competitor’s protected brand identity. That’s a painful (and avoidable) cash hit.
On social media, branding is consumed quickly and in small formats.
People don’t always read names carefully. They recognise:
- colour blocks and gradients
- thumbnail styling
- highlight covers and story templates
- background colours behind text overlays
If your paid ads or organic content uses a colour scheme strongly associated with another brand in your niche, you can unintentionally create “passing off” style concerns - even if your business name is different.
Colour trade mark risk isn’t just for product companies.
If you’re a service business, colour might appear in:
- trade uniforms
- vehicle wraps
- building signage
- online booking platforms and customer portals
And if you franchise, license, or scale across regions, consistent colour branding becomes even more central - meaning you’ll want to ensure your brand assets are defensible, and you’re not building on someone else’s established “signature” look.
Fair Trading Act Risk: Misleading Or Confusing Branding
Even beyond trade marks, branding that misleads or confuses consumers can create risk under the Fair Trading Act 1986. This can matter where your colour and presentation makes customers think you’re affiliated with, endorsed by, or the same as another business.
That’s why it’s smart to treat branding as a legal issue as well as a design issue - especially if your industry is crowded.
Can You Register A Colour Trade Mark In New Zealand?
Yes, it’s possible - but you should go in with realistic expectations.
Colour trade marks tend to be more challenging than word or logo marks because you’ll usually need to show the colour is distinctive, and the application needs to be described clearly enough that it’s enforceable.
What IPONZ Typically Looks For
While every application is assessed on its own facts, colour marks commonly raise questions like:
- Is the colour inherently distinctive? (Often, no - colours are usually not inherently distinctive.)
- Has the colour become distinctive through use? (Evidence can be important.)
- Is the description clear? (For example, a defined shade reference and how it is applied.)
- Is the scope too broad? (If it’s too broad, it may be rejected or opposed.)
- Is it functional or common to the industry? (That can undermine registrability.)
If you’re building a brand where colour is a major asset, a smart approach is often to register:
- a word mark (your brand name)
- a logo mark
- and then consider whether a colour mark is worthwhile once you have strong evidence and consistent use
That way, you’re protected from day one, while you build the brand recognition needed to support stronger, non-traditional rights later.
Brand Ownership Still Matters (Even When Trade Marks Aren’t The Issue)
If you’re working with designers, agencies, contractors, or co-founders, it’s important to be clear on who owns what - including brand guidelines, packaging artwork, and marketing assets.
This is where having properly drafted contracts can save you headaches later, particularly around IP ownership, confidentiality, and handover of files.
Depending on your setup, documents like a Service Agreement can help set clear expectations with creatives, and a Founders Agreement can help co-founders avoid disputes about who controls the brand as the business grows.
Practical Steps To Avoid Colour Trade Mark Problems
Branding should be exciting - and it can be, as long as you do a few checks early. Here are practical steps you can take before locking in your colour palette and rolling out your brand assets.
1) Do A Sensible Clearance Search Before You Commit
Before you spend money on packaging, signage, or a new website, do a quick “risk check”:
- search the trade marks register for key competitors (and review what they’ve registered)
- Google your industry + “brand colours” and see who dominates the space
- check marketplaces and social media for similar “look and feel”
- look at how your branding appears at thumbnail size (this is where confusion happens)
This won’t replace tailored legal advice, but it can quickly flag obvious conflicts.
2) Don’t Copy “Design Trends” Too Closely In A Tight Niche
Some industries are saturated with similar aesthetics (think: wellness brands, skincare, SaaS, food delivery, tradie services). If you’re using a popular template style, consider changing at least one major brand element so your identity doesn’t blur into the market.
Practical ways to differentiate include:
- choosing a less common “hero” colour in your space
- using a different packaging layout and typography system
- creating a distinctive brand device (pattern, icon set, label shape)
3) Register The Brand Elements That Actually Drive Recognition
If customers recognise you by name and logo, start there. Those are often the strongest, clearest trade marks to register and enforce.
If colour is your key differentiator (for example, your entire marketing identity relies on a signature colour scheme), it may be worth planning a longer-term strategy around colour protection - but it needs to be done carefully.
4) Keep Evidence Of Your Brand Use
If you ever want to claim your colour has become distinctive, evidence matters.
It’s a good habit to keep records like:
- dated examples of packaging and marketing materials
- brand guidelines showing consistent use
- advertising spend and campaign history
- sales data and distribution information
This kind of evidence can be useful in registration, oppositions, or enforcement scenarios.
5) Get Your Legal Foundations Right So Your Brand Is Easier To Protect
Brand disputes often get messier when the business structure and ownership documents aren’t clear.
For example, if you’re building a company (or planning to bring on investors), it’s usually worth having foundational governance documents like a Company Constitution and (where relevant) a Shareholders Agreement so decision-making and ownership rights are clear.
That way, if you ever need to enforce your IP, sell the business, or raise capital, your brand assets aren’t stuck in internal disagreement.
What Should You Do If Someone Accuses You Of Infringing A Colour Trade Mark?
Getting a cease and desist letter can be stressful - especially if you’ve already launched and invested in your brand.
But don’t panic, and don’t reply impulsively.
Here’s a practical approach:
- Check what they actually own: are they relying on a registered trade mark, an application, or “common law” reputation?
- Compare the full context: it’s rarely just colour - look at names, logos, layout, and the overall impression.
- Consider your goods/services: the risk is usually higher where you operate in closely related classes and target similar customers.
- Gather evidence: keep copies of your branding files, launch dates, design briefs, and anything showing independent creation.
- Get advice before you respond: a quick response can accidentally admit things or escalate the dispute.
Sometimes, the best solution is a practical one: small brand tweaks, updated packaging, or a coexistence arrangement. Other times, you may have strong grounds to push back.
The right strategy depends heavily on the facts, so it’s worth getting tailored advice early - before the dispute affects your customers, suppliers, or platforms.
Don’t Forget Privacy And Customer Communications If You Rebrand
If a dispute leads to a rebrand (even a partial one), you might be updating websites, email marketing assets, and customer accounts.
If you collect customer data (like emails, shipping addresses, or health-related information), make sure your Privacy Policy still matches what you’re actually doing, especially if you change platforms, providers, or marketing tools during the process.
Key Takeaways
- Colour trade marks can exist in New Zealand, but they usually protect a specific use of a colour in relation to particular goods or services - not a blanket “ownership” of a colour.
- Colour marks can be powerful because consumers often recognise brands by colour quickly, especially in packaging and online advertising.
- Most legal risk comes from overall brand similarity (colour + layout + design), not from colour in isolation.
- Before committing to a colour palette, it’s smart to do basic clearance checks and avoid borrowing too closely from competitors in your niche.
- If colour is a core part of your brand identity, you may want a longer-term protection plan alongside standard registrations for your business name and logo.
- If you receive an infringement complaint, don’t respond on instinct - check what rights are being claimed and get tailored legal advice before you commit to changes or admissions.
If you’d like help protecting your brand or responding to a trade mark issue, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
