Trademarked Colours: Is It Alright to Use Them?
Chances are, you’ve never seen a jewellery store that has the same robin’s egg blue packaging and marketing materials as Tiffany & Co. It’s also unlikely that you’ve seen a chocolate bar with the same purple wrapper as Cadbury or machinery with the same yellow used on Caterpillar vehicles.
Why is this so? Have these companies somehow reached out to competitors and asked them not to use their colours?
In a way, they have. By trademarking their colours, these companies enjoy exclusive use of the hues that define their brand. So before you design a logo or order name badges with the colour of your choice, it pays to check if you’re infringing on another’s companies right to use the colour exclusively.
The Power of Colour
Brands know that colours are a powerful form of consumer recognition and a key brand identifier, so much so that they seek legal protection for it. In fact, about 80% of consumers think that colour increases brand recognition.
In the past, trademarking colours was difficult because they weren’t considered a distinctive mark on goods. The issue was resolved by the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, which declared that trademarks were any sign that could distinguish the products and services of one company from another.
Trademark isn’t synonymous to ownership, though. Your company can use a trademarked colour provided that you don’t belong in the same industry as the company that applied for the trademark. For example, Target can’t sue Coca-Cola for using the colour red because they sell different products, and they belong in different industries.
Since the agreement, companies have applied for trademark protection for their colours, but not everyone was granted the coveted trademark status.
The colour had to be distinctive, meaning it has to distinguish the brand of the product from others. For instance, the Louboutin’s red soles and Tiffany blue boxes have acquired a strong distinctiveness after the process of familiarisation with the public.
Additionally, colours that are part of a certain item’s function cannot be trademarked. For instance, authorities rejected the trademark application of orange and yellow for public telephones, because these hues ensure better visibility in any lighting condition. The colours weren’t seen as a unique color that would promote the manufacturer, but something that aided visibility.
In some cases, the colour can’t be trademarked even if it’s not part of the product’s function. For instance, it’s difficult to apply trademark protection for black on outboard motors. Black isn’t functional (it doesn’t make the engine work better or reduce manufacturing costs), but people largely prefer black motors because it’s compatible with many boat colours. Additionally, consumers like them because they look smaller once mounted on the boat. Giving a single company exclusive use of the colour, in this case, didn’t seem fair.
The Colours to Use on your Business
Are there still colours available for your business to use? Definitely.
Courts usually use the Pantone Matching System®, a set of 1,867 solid colours, to identify the exact hue of the protected colour. For instance, the exact shade of Tiffany blue may be different from one person to another. So the jewellery brand sought legal protection for Pantone 1837.
That leaves more than 1,800 colours to choose from.
Here are other brands that have colour trademarks:
- Whiskas – Pink (Pantone 248C)
- Cadbury – Purple (Pantone 2685C)
- Virgin – Red
- Land Rover – Green
- Sainsbury – Orange
If the colour you wanted happened to be trademarked by a competitor, don’t feel too defeated. Look on the bright side. It’s your chance to use a unique colour and brand identity that will make a mark in your industry. Who knows? Maybe someday, you’ll get to trademark your own colour, too.