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 Trademarking A Colour – Another Type of Non-Conventional Trademark

Trademarking A Colour – Another Type of Non-Conventional Trademark

November 13, 2020

Why would you want to trademark a colour given that colour is difficult to trademark, and is part and parcel of every visual identity, even those that opt for black and white? It is rare to hear of someone having to rebrand because they’re using someone else’s colours after all.

Your logo, brand colours or shapes and other visual or aural elements of your branding are the identifiers that anchor associations in customers’ minds to the brand name.

Basic branding common sense suggests using a colour consistently to ensure you are recognisably you because your brand colours will be part and parcel of how your branding will be associated with your brand name. That is how people who have come across your content are likely to recognise you again.

The important objective of branding is to build mental availability and colour is part of the way busy people become aware of a brand and associate it to the brand name.

In her book, Building Distinctive Brand Assets, Jenni Romaniuk explains how mental availability is built as your branding becomes anchored to the brand name through advertising.

Evidence-based Research

Her research involved measuring the fame and uniqueness of a range of different assets including colour. The task of brand assets such as colours, is to build mental availability so that the asset evokes the brand name in people’s minds. The ultimate objective once an asset becomes sufficiently anchored to the brand name, is for the colour or other asset on its own to bring to mind the brand name.

The use of colour and visual identities can be a great communicator of a brand’s values and messages communicating without any need for words.

A logo is an obvious identifier, but colours and shapes can also sometimes become unique distinguishing factors for a brand.

Think about when you do your weekly shop at the supermarket. What are you drawn by when you pick up objects? The visual image of a product often plays an important part in attracting a buyer’s attention, and moving them to buy.

The visual identity as a whole triggers mental associations to the brand. If you want to explore what elements to choose that would most likely be both easier to protect and symbolise your brand most rapidly then work with a brand lawyer.

To better understand the power of visual hammers, read the book Visual Hammer by Laura Ries It is a useful read for understanding the interaction between visual and verbal communication.

Why Register a Trademark?

The purpose of a trademark is to protect the identifying signs that enable buyers to recognise the origin of your goods or services. That is how they know it is you and not your competitor. Owning these assets is important as they are valuable.

To understand why registration is important consider a scenario where you consistently use your brand colours, and a competitor begins using the same colours. It is almost impossible to stop the competitor using the same colours from a legal point of view unless there is sinister copying that amounts to passing off. Even then it is expensive and uncertain to bring such an action. So, in practice brand colours are freely copyable by competitors.

However, if you can secure a trademark the benefit of doing so and getting rights to a particular pantone colour is that you have a legally enforceable right to stop competitors using the same or confusingly similar colours. In practice, competitors will pay attention to your rights and will avoid using similar ones.

However, colour trademarks are difficult to obtain.

With logos, you can readily register a trademark and enforce your rights in the logo. The colour will be part and parcel of the logo, but the logo registration does not give you a monopoly right to the colour. Instead it gives you rights to the logo in that colour. While you would be able to stop a competitor using a similar logo you would not be able to point to a totally different logo they’re using and object because it happens to be the same colour as your logo.

When you own a colour, on the other hand, although that only gives you the right to use a particular pantone in the context of your goods or services, it nevertheless provides a powerful tool to potentially prevent competitors copying your brand colour even if they’re using a different pantone shade of it.

Prioritising Your Protection

The way legal rights like trademarks work, is that if a competitor realises your rights are strong, they avoid copying you. Supermarket lookalikes raise separate issues because the type of copying of packaging that happens in such environments is not a sign of how legal protections work.

The brand assets that you can readily trademark should be prioritised over unusual trademarks, such as colours, or shapes. There is no need to prove that those elements have become distinctive through established use. Provided you have chosen the right type of name, logo or visual hammer you can protect them from day one as trademarks, and you should. That is how you ensure your brand remains distinctive and unique.

It is a no brainer that you should take advantage of all the legal protections you can get because your brand is property that you need to own. As you build up mental associations to these brand elements you need to do so confident in the knowledge that competitors will not be able to legitimately begin using the same name, logo or visual hammer. You need to retain exclusive rights to these brand elements so you can stand out uniquely and be different to your competitors.

Cadbury’s Trademark Journey With Colour

A non-conventional trademark like colour is not at all straightforward to secure. Such marks need proof of acquired distinctiveness: namely that the colour or shape is synonymous with your brand in the mind of your customers.

This involves investing time and significant marketing budgets, often over many years before you might even consider filing an application to secure such a trademark. During that time, competitors may begin imitating your branding and as your rights to stop them will be non-existent, it is difficult to maintain your uniqueness, and stop competitors using your colours too.

Back in 2012 I wrote a blog ‘Can you Trademark A Colour? Cadbury Secures the Rights to the Colour Purple’ detailing how Cadbury had managed to secure a trademark for its signature purple colour after a lengthy battle with Nestle. Cadbury secured the exclusive rights to use its own distinctive colour on its confectionary items.

However, since then, Cadbury has been back in court and lost its colour mark. See here, here and here for the details. The upshot is that Cadbury is now dependent on unregistered trademark rights which are much more difficult to enforce.

Knowing whether you want to secure a trademark over your brand colours or shapes involves a host of considerations as to how you should use your colours, or other elements beyond simply being consistent. For example, in my blog How to Secure an Unusual Trademark I explained how Coca Cola secured trademark rights over its bottle shape

How Coca Cola Obtained Exclusive Rights to its Bottle Shape

By strategically using other intellectual property rights to protect its bottle shape and make it more difficult for competitors to copy the bottle, Coca Cola gradually associated its bottle shape in consumers’ minds by clever advertising that consistently associated the bottle shape to the brand. After some 14 years the shape became synonymous with its brand. That is when the company knew that the shape was a symbol of its brand which they could confidently apply to register as a trademark.

In conclusion, you need to know what you’re doing when it comes to choosing the best brand assets to create, and which to prioritise creating and protecting. When you know that securing a colour as a trademark is unlikely, it means you can perhaps relax around colour and instead put more emphasis on bringing other brand elements to the fore more when advertising.