Trademarks over the rainbow: can a brand own a color?

It has long been a tenet of branding that strong brands are associated with a particular color.  Brand consultants like to refer to it as “owning” a color.

PMS 1837, otherwise known as Tiffany Blue

Coca-cola, for instance, can be said to “own” red in the soda category. BP, the oil company, has been associated with green (Pantone 348C) long before it was co-opted by environmentalists. Hertz Car Rental owes its dominant use of yellow by virtue of John Hertz’ original business, the Yellow Cab and Yellow Truck Company.

Legally owning a color is another matter.

Trademarks have been given to single colors. Tiffany Blue is protected as a color trademark by Tiffany & Co. in some jurisdictions, including the U.S. The turquoise color is produced as a private custom color by Pantone, with PMS number 1837 (the year of Tiffany’s foundation).

Canary yellow used in conjunction the name “Post-it” is a trademark of 3M. And Wolf Appliance has obtained a federal trademark registration in connection with the distinctive use of red knobs on its cookers that has prevented archrival Viking from using red knobs for its ranges (see DuetsBlog).

The latest to attempt to corner the color market comes from Louboutin, the French shoe designer.

On August 10th a district court in New York refused to grant him a preliminary injunction stopping Yves Saint Laurent (YSL) from selling shoes with a red sole that Louboutin says infringe his trademark.

In the 20 years since Christian Louboutin made his first pair of ladies’ shoes with shiny red-lacquered soles, his exotically fashionable creations have become an object of desire for celebrities such as Jennifer Lopez, Angelina Jolie and Madonna.

According to the Economist, the puckish Frenchman is the biggest star in high-fashion shoe design, selling about 240,000 pairs a year in America at prices ranging from $395 for espadrilles to as much as $6,000 for a “super-platform” pump covered in crystals. The revenue of his company, Louboutin, is forecast at $135m this year.

Yet all this could be at risk. Louboutin sued YSL alleging that several of its rival’s shoes infringed Louboutin’s trademark on women’s shoes with a red outsole, which was granted to the company in 2008 by America’s Patent and Trademark Office.

In denying the request for an injunction the judge said that in the fashion industry color serves ornamental and aesthetic functions vital to robust competition. He went further, saying that no fashion designer should be allowed a monopoly on color because as artists they all need to be able to use the full palette.

In a flight of fancy he poetically imagined Picasso taking Monet to court over the use of blue in his painting of water lilies, because it was the same or close to the distinctive shade of indigo, the “color of melancholy” he used in his Blue Period.

Can a work of art be considered in the same way as a commercial product? Is it about the color red, or a proprietary design feature of the shoe? It will now be the job of an appeal court to rule on the matter.

And if Louboutin loses again, the company says it will take its case all the way to the Supreme Court while Louboutin, like Dorothy in her ruby red slippers, wishfully clicks his heels three times and repeats, “There’s no color like red.”

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2 thoughts on “Trademarks over the rainbow: can a brand own a color?

  1. What a pompous donkey. Color is universal and I don’t consider him an artist, for a true artist’s passion is to inspire creative freedom. If handed to me freely, I’d pass on one of his shoes, which have become as common as water. Best of wishes to YSL…class vs celebrity.

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