Pop Quiz: what is the corporate color used by communications multi-national Orange?
Yeah, we're guessing there wasn't much debate over the issue once the name had been selected. The company embraced the color so fully that its Spanish subsidiary trademarked it: in October 2008, Spain's Patent and Trademark Office awarded the company a trademark for an orange square. No logo, no distinguishing characteristics—nothing. Just orange.
But a competitor, Jazztel, took the matter to the courts, and last month the Spanish Supreme Court upheld a lower court's ruling that the trademark had been improperly granted. The lower court had opined that an orange square with no other distinguishing elements does not possess the 'distinctive characteristics' required to trademark a design, so Jazztel—and anyone else for that matter—is free to use orange with wild abandon.
The case is reminiscent of Christian Louboutin's effort to block Yves Saint Laurent from selling red-soled shoes.
In this case, a judge ruled similarly – that Louboutin could not prevent other companies from producing shoes with red soles, but for a different reason. The color red was found not to be a purely distinguishing characteristic, but a functional feature. The red fulfills an aesthetic function (beauty being part of a shoe's function), and according to American law a color that has a functional purpose cannot be trademarked.
Now as we've noted before, nothing ever written in BrandCulture Talk from the beginning of time until the end of the world constitutes legal advice. That said, what does this mean if you're embarking on a re-branding project, or creating a new brand?
It means that for better odds when using color to create an additional layer of distinctiveness for your brand identity or your products, you need to try and choose one that meets two criteria:
- The color must be distinctive from those used by competitive companies or products
- The color must not have any other function than to be distinguishing
You also need to have a stomach for litigation, because as this blog has highlighted before, even when you do secure a trademark, there are plenty of examples of registrations being invalidated, or at the very least challenged through the legal process.
It's a tall order, but it's not impossible: Owens Corning did it with pink fiberglass. Tiffany did it with their blue (fun fact - it's a custom color designated by Pantone as PMS 1837, but is not publicly available). And if your color can become as iconic as those two companies', it just might be worth the trouble.