Weston comments that -
With 220 registered colour marks now on the Australian Register, colour trade marks continue to gain popularity. Yet this case exemplifies the importance of deliberately choosing a particular colour within an extensive and calculated branding strategy in order for such marks to be considered sufficiently distinctive. The more distinctive the trade mark, the less challenging it is to register and the more it adds to the goodwill of a business, observes Nicholas Weston, the commercial IP law firm behind the Australian Trade Marks Law Blog, citing its favourite commercial case involving cats: Whiteman Smith Motor Co Ltd v Chaplin (1934) 2 KB 35 at pp 42, 49, where the types of goodwill were zoologically classified into cats, dogs, rats and rabbits, stating:The cat prefers the old home to the person who keeps it, and stays in the old home although the person who has kept the home leaves, and so it represents the customer who goes to the old shop whoever keeps it, and provides the local goodwill. The faithful dog is attached to the person rather than to the place; he will follow the outgoing owner if he does not go too far. The rat has no attachments, and is purely casual. The rabbit is attached by mere propinquity. He comes because he happens to live close by and it would be trouble to go elsewhere.The categories characterise the goodwill of a business in composite, partly referable to its locality, partly to the way in which it is conducted and the personality of those who conduct it, and partly to the likelihood of competition, many consumers being no doubt actuated by mixed motives in conferring their custom. Human consumers, that is, not cats. A cat cannot be made to do anything. No shade of purple will encourage a cat to shave, for example, for the reason that they already prefer whiskers.