The maker of Mother energy drinks has lost a five-year battle with rival drinks-maker Frucor Suntory over the right to use a lurid shade of green on its bottles and cans.
Energy Beverages applied to have Frucor’s trademark over the Pantone 376c shade of green ruled invalid. In 2020, the High Court sided with Frucor, which makes the V energy drink, over control of the distinctive shade of green. V launched in 1997 and Frucor has held the trademark since 2008 for the distinctive shade of green when used as the predominant colour on drinks bottles. When it challenged the trademark, Energy Beverages argued both that Frucor had not provided a definition of “predominant”, and that its trademark was “insufficiently clear”.
It also argued that the colour tile included in Frucor’s 2008 trademark application did not match Pantone 376c, therefore invalidating the application. The mismatch was a result of a faulty scan of a Frucor colour swatch done by the Intellectual Property Office of New Zealand, which registers trademarks. Justices Mark Cooper, William Brown, and Patricia Courtney ruled that Energy Beverage’s argument that Frucor’s trademark was insufficiently clear was correct. However, Energy Beverages’ application to the Intellectual Property Office to have Frucor’s trademark ruled invalid was time-barred.
The justices also ruled that the tile-scanning error would not have invalidated Frucor’s trademark. The legal tussle followed a similar legal argument in Australia between V and Energy Beverages’ parent company Coca Cola.
Frucor lost its long-running legal battle to trademark Pantone 376c across the ditch in 2018.
The case then went through the Australian court system before Frucor’s case was rejected by Federal Court Justice David Yates.
