Most business owners think of trade marks as names and logos.
But in the right circumstances, your packaging shape, container, or even a colour can become a registered trade mark.
That can be commercially powerful — particularly in competitive retail markets where shelf recognition drives purchasing decisions.
However, as the recent Moccona coffee jar decision shows, protecting non-traditional trade marks is rarely straightforward.
Let’s break down what the law allows — and what it doesn’t.

Trade Marks Aren’t Limited to Words
Under the Trade Marks Act 1995 (Cth), a trade mark is a “sign” used to distinguish goods or services.
A “sign” can include:

• Shape
• Colour
• Aspect of packaging
• Sound
• Scent

So yes — the shape of a jar, the layout of a box, or a specific shade applied to goods can potentially be registered.
But registration depends on one central concept:
Does it function as a badge of origin?
In other words, does it tell consumers who the product comes from?

When Can Packaging or Shape Be Registered?
To be registrable, a packaging shape must be:

1. Distinctive
2. Non-functional
3. Capable of distinguishing your goods from others

This is where many businesses run into difficulty.
The Functionality ProblemTrade mark law does not allow you to monopolise features that are primarily functional.
If a shape:

• Makes the product easier to grip
• Improves storage or stacking
• Is cheaper or more efficient to manufacture
• Is common in the industry

…it is unlikely to qualify.
Trade marks protect brand signals — not engineering advantages.
If a feature is functional, it may have been protectable by patent (for a limited time), but it cannot be locked up indefinitely under trade mark law.

The Moccona Coffee Jar Case
A recent Federal Court decision illustrates how complex this area can be.
Moccona sells instant coffee in a distinctive glass jar — clear glass, slightly tapered cylindrical body, broad shoulders and a short neck. The shape has been used consistently for decades and was registered as a trade mark in Australia.
When competitor Cantarella (Vittoria) launched instant coffee in a jar with a similar silhouette, Moccona sued for trade mark infringement.
What did the Court decide?The Court found that:

• Moccona’s jar shape had acquired distinctiveness before registration.
• However, Cantarella had not used the jar shape “as a trade mark.”

That distinction was decisive.
The Court concluded that consumers relied primarily on:

• Prominent word marks
• Labels
• Branding elements

— not the jar shape alone — to identify origin.
So although Moccona had a valid registration, infringement was not established.
The commercial lessonRegistration is not enough.
To enforce a shape mark, you must show that:

• The competitor is using the shape as a badge of origin; and
• Consumers perceive it that way in context.

Courts assess real-world purchasing behaviour — not theoretical distinctiveness.

Can a Colour Be a Trade Mark?
Yes — but it is often even harder than shape marks.
Colour marks are registrable in Australia if they:

• Are precisely defined (often using a Pantone reference); and
• Distinguish the applicant’s goods or services.

Most colours are considered decorative or commonly used within industries. That means distinctiveness often needs to be acquired through long-term, consistent use.
International examples

• Tiffany Blue has become synonymous with Tiffany & Co jewellery packaging.
• Cadbury’s attempts to secure exclusive rights over a particular shade of purple demonstrate how difficult and heavily scrutinised colour monopolies can be.

The key theme across jurisdictions: colour protection is earned over time through consistent, exclusive use.

Distinctiveness: Inherent vs Acquired
There are two ways a non-traditional mark can be distinctive:
1. Inherent distinctiveness: The shape or colour is unusual and immediately distinctive from day one.
2. Acquired distinctiveness: Through years of use, consumers come to associate the feature with one trader.
Acquired distinctiveness requires evidence, such as:

• Length of use
• Sales figures
• Advertising spend
• Market share
• Consumer recognition

This becomes an evidentiary exercise, not just a legal one.

Practical Guidance for Business Owners
If your packaging plays a central role in how customers recognise you, consider the following:
1. Design deliberately - If you want protection, avoid default industry shapes.
2. Be consistent - Frequent design variations weaken claims of acquired distinctiveness.
3. Keep records - Marketing spend, sales data and longevity of use all support registrability.
4. Think in layers - Strong trade mark strategy usually combines:

• Word marks
• Logos
• Packaging get-up
• Possibly shape or colour marks

Non-traditional marks work best as part of a broader brand protection strategy.

The Strategic Question to Ask
If you removed your brand name from your packaging, would customers still know it was yours?
If yes — and you can prove it — you may have a protectable asset.
If not, your trade mark strategy may need strengthening before registration is realistic.

Key Takeaways
Packaging and colours can absolutely become trade marks in Australia.
But they must function as genuine indicators of origin — not just attractive design choices.
The Moccona decision is a reminder that:

• Distinctiveness matters.
• Context matters.
• Enforcement depends on consumer perception.
• Registration is only one step in a broader brand strategy.

For businesses investing heavily in shelf presence, product presentation or premium positioning, these issues are not cosmetic — they’re strategic.

If you’re building a brand where packaging carries real commercial weight, it’s worth assessing whether those elements are capable of protection — and whether your current use supports that claim.
Because the strongest brands don’t just protect their names.
They protect how they show up in the market.