Marketing studies suggest that over 80% of visual information is related to colour. Seem unlikely? Try and picture the following in your mind: Coca-Cola, Starbucks, Cadbury and O2. Roughly 90% of you just saw specific shades of red, green, purple and blue. Not a phrase, not an advert, just those colours and maybe a vague logo.
It’s only recently companies have begun to appreciate how vital this aspect of brand management is, and to litigate accordingly: in the past few years Cadbury’s have trademarked their particular shade of purple; T-Mobile have sued a blog for using magenta in their logo; and Orange have laid claim not only to the colour but also the word itself.
For designers it’s a nightmare: with an ever-dwindling colour palette, creating that stand-out design becomes increasingly difficult. But there are plus sides. It’s harder than ever for copycat businesses to leech off your brand, and once you hit upon that perfect combination, the law will protect it as ferociously as your tagline.
Who Can Copyright a Colour?
Short answer: anyone. In the UK, trademarking your logo automatically registers those colours to your brand, and yours alone. There are, however, certain restrictions. Obviously, you need to check if anyone else has a claim on this colour first, and hold back all that design-money until you’re sure.
Secondly, your logo will need to pass the functionality test. This prevents companies from trademarking colours with pre-existing psychological or cultural associations. We associate green with nature, life, ‘organic’ products; therefore you will be unable to pursue a claim on green, unless you are working in a field where that association simply wouldn’t apply (e.g.: telecommunications).
Depending on your industry, defining functionality could get complicated. Louboutin spent a ton of money dragging Yves Saint Laurent through the courts last year, in an attempt to protect their red-soled shoe from imitation. While they did manage to get limited trademark, it only applies in very specific circumstances, with one judge ruling that, due to the nature of the fashion industry, all colour was essentially functional.
How to Get Your Colour-Scheme Protected
So you have a distinct colour-scheme for a unique product in your field that passes the functionality test. What’s the next step? According to U.S law, that colour needs to have taken on a ‘secondary meaning’ in the eyes of the public. Simply put: you can’t trademark cyan for your tableware range, unless a good chunk of the population now associate cyan with your cutlery. Therefore, you need to have been making this product range, without the help of copyright law, for some time already.
It’s not just the USA either. Australian law requires a ‘record of colour use’ before a trademark will be considered, with the colour in question being used ‘intensively and extensively’ over a period of time. After all, if you could pre-emptively trademark a colour the system would be wide open to abuse from professional litigants. Make sure the colour is demonstrably yours.
How It Will Apply
First, your trademark will only apply in your industry. While T-Mobile may have sued a blog for using magenta, the blog in question was concerned with mobile phones; AKA telecommunications, AKA T-Mobile’s industry. If I want to open a delivery service tomorrow and spray all my trucks magenta, there’s nothing they can do about it. Colours are defined by industry.
Secondly, you will only be protected worldwide if you apply to be. In the EU this is via a Community Trade Mark. Make no mistake, what you consider ‘your’ colour may already be in use elsewhere in the world, and will cause a severe headache if you end up going global. Just see the difficulty faced by apple bringing their trademarked ‘iTV’ over to the UK (where the name doesn’t carry quite the same connotations).
At the end of the day, copyrighting colour is a minefield any growing business will need to navigate. While it may seem a headache, try and imagine how you’ll feel if a rival company gets there first.
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