Re Veuve Clicquot Ponsardin, Maison Fondee En 1772

This matter concerned an application by Veuve Clicquot Ponsardin, Maison Fondée en 1772 (Veuve Clicquot) for an order that the registration of a trade mark consisting of the colour yellow be removed from the Register of Trade Marks. The application was brought against the registered proprietor of the mark, who had registered the colour yellow for use in relation to champagne. Veuve Clicquot, a well-known producer of champagne, argued that it had used the colour yellow in relation to its champagne for many years and that the registration of the colour yellow as a trade mark by another party would prevent it from continuing to use this colour, which it considered to be distinctive of its goods. The application was heard by Ian Forno.

The primary legal issue before the court was whether the colour yellow, when applied to champagne, could be registered as a trade mark. This involved a determination of whether the colour yellow, in the context of champagne, was capable of distinguishing the goods of the applicant from the goods of other traders, as required by the relevant trade mark legislation. The court also had to consider whether the registration of the colour yellow as a trade mark would unduly restrict other traders from using the colour yellow in relation to their own champagne products.

The court considered the established principles of trade mark law regarding the registrability of colours. It noted that a single colour can be a trade mark if it has acquired distinctiveness through use, meaning that consumers have come to associate that colour exclusively with a particular trader's goods. However, the court also recognised that colours are inherently less distinctive than words or logos and that a broader scope of use of colours by traders in a particular industry is often necessary. In this instance, the court found that while Veuve Clicquot had used the colour yellow extensively, it had not demonstrated that the colour yellow, when applied to champagne, had acquired the necessary distinctiveness to function as a trade mark capable of distinguishing its champagne from that of other producers. The court was also mindful of the potential for such a registration to create an unfair monopoly over a colour widely used in the champagne industry.

Consequently, the court dismissed Veuve Clicquot's application for removal of the trade mark from the Register.