Conclusion
163 I accept that Frucor's use of "V" Green before the filing date was, in Frucor's words, substantial, consistent and conspicuous. I have no doubt that, before the filing date, those familiar with Frucor's "V" energy drinks would have associated "V" Green as the colour of Frucor's core energy drink product. But, despite this, and the extensive use of "V" Green exemplified in the evidence, I am not persuaded that, in the context and setting of that use, it functioned as a trade mark.
164 There are two significant matters that bear on my conclusion. The first is the consistent presence and dominating display of the distinctive "V" logo on the containers used for the range of "V" energy drink products, as well as its consistent and prominent presence in Frucor's promotional and marketing material. I have no doubt that, before the filing date, consumers of energy drinks, and consumers of non-alcoholic beverages more generally, would have seen that logo functioning as the badge of origin for those particular goods.
165 The second matter is the context and setting in which "V" energy drinks are sold and marketed. It would be too narrow a view to confine that context and setting to "energy drinks". The planograms and photographic evidence of store displays relied on by Frucor show that energy drinks, as a sub-category, are sold alongside other non-alcoholic beverages, including what I would describe as soft drinks, sports drinks, fruit juice drinks and bottled water. Indeed, the fact that Frucor commissioned Mr Chandler to conduct Study 1 shows that its own marketing interests for "V" energy drinks did not and do not lie solely within the narrow confines of an "energy drink" market.
166 In this broader context and setting, colour is used to denote not merely product flavour, but, more generally, some varietal characteristic of the beverage - for example that it is "sugar free". Frucor's own use of colour before the filing date shows that, in relation to its own "V" energy drink range, colour was used to denote varietal differences, and to distinguish products in the range from each other and from its core product - the hero in the range. I refer again to Mr Lamb's timeline reproduced in the Schedule to these reasons, which shows how the range of "V" energy drinks was presented to consumers. This is clearly how Frucor intended to use colour, and clearly how it perceived and anticipated that consumers would respond to that use. Although Frucor's use of "V" Green was pervasive and no doubt fundamental to its whole marketing strategy, it was, nonetheless, reminiscent of its core product. In this way, Frucor's use of "V" Green was essentially descriptive, not distinctive in the trade mark sense. It denoted the core product in the "V" energy drink range. I am not persuaded that, somehow, consumers would understand that colour in relation to the core product was being used differently to colour in relation to other varieties within the "V" energy drink range, or any differently from how colour was and is used descriptively across the range of non-alcoholic beverages sold through trade channels such as supermarkets and convenience stores.
167 I am persuaded, therefore, that consumers would have regarded "V" Green as designating the core product, and nothing more. In saying this, I recognise that more than one trade mark can be used in relation to a given product. But, in light of the evidence before me I am not satisfied that, before the filing date, "V" Green functioned as a separate trade mark alongside and independently of the "V" logo.
168 Mr Chandler's evidence does not persuade me to a different point of view. I have some concerns about the reliability of the surveys undertaken in Study 1 and Study 2, particularly in relation to the selection of the samples used. But I do not propose to dwell on these matters, still less reach a view on all of CCC's criticisms. Indeed, I would have some difficulty in comfortably reaching a concluded view on CCC's criticisms given the absence of a countervailing and tested body of expert evidence dealing with those criticisms. (CCC filed an affidavit from an expert but, as matters transpired, it did not read that affidavit.)
169 Taking the results of the surveys at face value, I am not surprised that there is significant consumer identification of Pantone 376C with the "V" energy drink. Mr Chandler's work seeks to quantify that identification as at January 2015 and January 2016, and to express the conclusion that substantially similar results would have been obtained had the surveys been conducted before the filing date, given the 13 years of promotion of "V" energy drinks by Frucor up to that time. I now have that evidence and have been able to draw my own conclusions from it - which I have expressed above. What I do not accept is that Mr Chandler's studies show that "V" Green was used by Frucor as a trade mark before the filing date, even assuming the result of the surveys to be accurate and representative of the perceptions of the Australian public as at the filing date.
170 In this connection, I note Mr Chandler's conclusion from Study 1 that Pantone 376C is an element of Frucor's brand identity that has properties that go well beyond decorative or functional attributes, and distinguishes Frucor's "V" energy drinks from the energy drinks of other traders. If by that statement Mr Chandler intended to say that, before the filing date, Pantone 376C functioned as a trade mark in relation to energy drinks, I do not accept it. Further, as I have said, I do not accept that such a conclusion can be drawn from the studies.
171 The first matter to note in this regard is that evidence of an association (or, I would add, identification) of a sign, including a colour, with a particular product does not mean, without more, that the sign is functioning or has functioned as a trade mark in relation to that product. One needs to have an understanding of how the sign was used, in the proper context and setting, before that conclusion can be drawn. Moreover, the conclusion is not purely a factual one. It requires an understanding of what is meant by trade mark use for the purposes of the Act. The surveys do not deal with these considerations.
172 The second matter to note is the form of the survey questions used for the studies. The questions addressed to the participants in Study 1 distinguished between colours and brands. This is illustrated by Questions 1 and 2.
173 Question 1 was:
Please look at each colour and indicate if you identify it with one or more brands of drink that you could buy at a convenience store or supermarket?
174 Question 2 was:
You indicated that you identify this colour with a brand of drink. Please type the name of the brand or brands below. If you have more one [sic] brand, use a separate box.
175 In later questions, participants were asked questions about identified brands of drink, specifically "Monster", "Red Bull", "Mother" and "V". These are brands of energy drinks. It is clear that the colours about which participants were asked were not themselves presented as brands, but colours identified with brands. I have no reason to think that participants in the survey would have viewed the questions differently.
176 I observe that the questions addressed to the participants in Study 2 also distinguished between colours and brands. Participants were prompted to nominate the brands of energy drinks that came to mind, without any visual or verbal cues. They were then asked to look at colours and indicate whether they identified them with one or more brands of energy drink they would buy at a convenience store or supermarket. Next, they were asked to state the name of the brand or brands by reference to the colour(s) they nominated. Once again, it is clear that the colours about which participants were asked were not presented or understood as brands, but colours identified with nominated or identified brands.
177 As I have noted, in his evidence Mr Chandler drew a distinction between forming an association between a sign and a product, and identifying a sign with a product, on the basis that identification connotes a stronger connection than mere association. I do not accept that the linguistic distinction Mr Chandler draws - assuming it to be meaningful - bears upon whether there has been trade mark use. In any event, I am not persuaded that the survey participants would have been attuned to the subtleties of Mr Chandler's reasoning on this matter when they answered the survey questions. I doubt, for example, that they would have failed to answer a survey question because, intellectually, they had reached a level of satisfaction commensurate with an "association" but not an "identification".
178 These conclusions are sufficient to enable me to conclude that Frucor has not established the requirement of s 41(6)(a) of the Act. It follows that the mark applied for, even assuming it to be unambiguously Pantone 376C, is to be taken as not capable of distinguishing the designated goods - energy drinks - from the goods or services of other persons. Therefore, the mark cannot be registered by dint of s 41(2) of the Act.
179 Before passing from this topic I should record that I am not persuaded that Frucor has failed to establish the requirement of s 41(6)(a) because the colour of the liquid of its core product is not "V" Green. It would be enough for Frucor to establish trade mark use and factual distinctiveness based on packaging