Frucor trademarked the colour of its original V packaging in 2008. Photo / ItsThatVGirl / TikTok
Frucor trademarked the colour of its original V packaging in 2008. Photo / ItsThatVGirl / TikTok
The makers of the energy drink V have won a legal fight over the distinctive colour of its cans, after a digital image with the wrong shade of green was mistakenly uploaded to an official trademark database.
V was launched more than 25 years ago by Frucor, a company then owned by the New Zealand Apple and Pear Board, and has become the biggest-selling energy drink in Australasia.
The colour of V’s green can was trademarked in 2008.
One of V’s market rivals is the Mother brand owned by Energy Beverages LLC (EBL), which also uses a green can for its Mother Kicked Apple flavour.
The presence of two similarly coloured products in the energy drinks market has led to years of courtroom tussles between EBL and Frucor Suntory, the Japanese company which now owns V.
In 2017, Frucor’s lawyers warned EBL it was infringing V’s trademark with the colour of its Kicked Apple cans. EBL responded with a court challenge of the validity of the trademark.
The case went all the way to the Court of Appeal, and EBL lost.
Part of EBL’s failed argument was that the shade of green used in the official online trade mark listing for V did not match the colour being used on its cans and bottle labels – it is a much darker green.
Court documents show that the difference between the green shades was the result of a “mistake” by officials in the office of the Commissioner of Trade Marks.
The Mother Kicked Apple energy drink is also sold in a green can. Photo / EBL website
The original V trademark application in 2008 included a metal foil swatch of the colour used on the cans.
When the trademark records were digitised from 2009, officials simply scanned the swatch and uploaded the image. But the scanned image did not faithfully represent the colour of the original swatch.
When Frucor requested a copy of its original application to defend its case, it was told the paper files no longer existed – the trademark registry exists now only in digital form, publicly searchable through the website of the Intellectual Property Office of New Zealand.
Standing in V’s favour, however, was an alternative description of the colour in the trademark listing, using the written code Pantone 376C to describe the colour of the cans and labels.
It was able to fend off EBL’s challenge using this description. The Court of Appeal found the image of a colour swatch in a trademark listing was unnecessary if a colour code was used.
In the latest court hearing, Frucor went back to the High Court, trying to get the image representing the V green colour changed in the register.
EBL again opposed this, arguing a trademark, once granted, cannot be altered.
However, High Court Justice Christine Grice said a section of the Trade Marks Act 2002 allowed for an “error or omission” in the trademarks register to be corrected.
“It was the [trademarks] commissioner’s error that led to the wrong colour being registered as the depiction of the trade mark in the register,” Justice Grice said.
She ordered that the visual depiction in the trademark register should be replaced with an image in Pantone 376C.
Justice Grice said Frucor had told her there had been no suggestion of any proceedings being issued for damages against EBL, “or anyone else for that matter”, for possible trademark infringement.
“It is possible that could happen, although it would seem that any such claim would now be outside the limitation period,” Justice Grice said.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.
