Traditionally trade marks have been restricted to signs that are capable of being experienced visually and orally. However, the world has evolved and both individuals and companies are on a daily basis exploring ways of expanding their market share, using various forms of technology, know-how, marketing and advertising tools. Both individuals and entities spend numerous amounts of money to protect their intellectual property, be it trade marks, patents or designs. Ultimately much depends on how members of the public perceive the goods or services and what in the consumers’ minds distinguishes a company’s goods or services from those of another in the course of trade. Whether businesses can use colour to distinguish their brands from their competitors is a question brought into sharp relief by many Courts around the world. For instance, if one looks at the telecommunications sector in South Africa, arguably certain colours are affiliated with certain entities, example, MTN the colour yellow and Vodacom the colour red. While the use of colour as a trade markable trait is growing, the burden of proof rests with any company that wants to trade mark a colour. The main reason for this is that the average consumer does not recognise colour per se as part of branding. Colour trade mark registrations have not yet gained much traction in South Africa, but they do remain an option for South African companies, as the Trade Marks Act specifically provides for the registration of colour as a trade mark, more specifically a mark is defined as any sign capable of being represented graphically including, inter alia, a shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned. Courts and trade mark authorities throughout the world, including South Africa are very wary when it comes to colour marks and the potential for such marks to create perpetual, unjustified monopolies where they shouldn't. In South Africa a few years ago the South African Trade Mark Registry refused an application by Cadbury to register its colour purple in relation to chocolates, conversely just recently in the United Kingdom, Cadbury was allowed to register its colour purple in relation to chocolates (having led substantial evidence of use and that the colour was associated with its product). Colour trade mark registrations remain an option for South African companies, but any application needs to considered carefully and it will be prudent to consult a trade mark attorney, as in South Africa there has been a marked trend to limit anti-competitive practices. This is evident from a body of statues and regulations regulating this field. DM Kisch Inc specialises in various forms of intellectual property protection including patents, trade marks, copyright, designs and furthermore, the commercialisation of intellectual property.