Can a Company “Own“ a Colour
(Read Time: 3 Minutes)
By Ollie Coull
Imagine you are launching a brand-new candy business. You design the perfect chocolate bar, wrap it in a sleek, shiny purple wrapper, and head out to sell it. A few days later, you get a massive legal letter from Cadbury threatening to sue you for millions. Can they really do that? Can a massive corporation actually lock down a colour on the rainbow and tell the rest of the world they aren't allowed to use it? If we're looking at commercial and intellectual property law in the US and the UK, the answer is a wild yes, but it is incredibly hard to pull off. Companies like Tiffany & Co. own their signature blue, UPS owns its muddy brown, and Christian Louboutin owns the bright red on the bottom of high-end high heels. But they don't own the colour completely. They only own it in a very specific sandbox.
In the early days of corporate law, courts absolutely hated the idea of colour trademarks. Judges rejected them left and right because of shade confusion, meaning it's almost impossible for a judge to decide if one company's purple is too close to another company's purple when lighting changes and human eyes see things differently. They also worried about colour depletion. There are only so many basic colours on the spectrum, and if the first ten tech companies to exist trademarked red, blue, green, yellow, orange, purple, pink, black, white, and grey, the eleventh company would literally be banned from making a coloured product. It would completely kill competition. Because of this, you used to only be able to trademark a colour if it was part of a specific logo or design, like the red and white script on a Coca-Cola bottle.
Everything changed in the United States with a landmark Supreme Court case involving a company called Qualitex, which made green-gold pads for dry cleaning presses. A competitor copied the exact colour, and Qualitex sued. The Supreme Court ruled that there is no special law preventing a colour alone from being a trademark, but they laid down two strict conditions. First, the colour must have what lawyers call secondary meaning. This means the colour has been used so much, and for so long, that when a normal consumer sees it, their brain instantly jumps to the brand before they even read the name, like seeing a solid robins-egg blue box and instantly thinking of Tiffany & Co. Second, the colour must be non-functional. A company cannot trademark a colour if it actually does something useful for the product. For example, John Deere cannot own green for tractors because green is a functional colour for farm equipment blending into fields. Pepto-Bismol tried to trademark its signature pink, but the courts rejected it because studies showed the bright pink colour actually helped soothe anxious patients' stomachs, meaning the colour served a therapeutic function.
Over in the United Kingdom, things are just as tough, as Cadbury found out during a massive legal war against its rival, Nestlé, to protect its iconic purple packaging. Under the UK Trade Marks Act 1994, a colour can be a trademark, but it has to be described with absolute clarity and precision. Cadbury’s original trademark application said the colour purple would be the predominant colour applied to the packaging. The UK Court of Appeal threw that out because the word predominant was too vague and opened the door to too many different visual forms. Cadbury had to spend years fighting in court and narrowing down their descriptions to prove that the public connects that specific shade of Pantone 2685C directly to their chocolate bars.
The most important thing to understand about commercial law is that a colour trademark is not a total monopoly. Target owns the colour red, but only for retail department stores. Netflix owns a different shade of red, but only for streaming services. Christian Louboutin owns red, but strictly for the glossy outsoles of women's high heels. If you want to paint your bedroom Tiffany Blue, start a tech company with a bright purple logo, or sell red bicycles, you are totally safe. The law only steps in when your choice of colour is highly likely to confuse a normal customer into thinking they are buying from the giant corporation. At the end of the day, commercial law treats colours just like brand names. If a company spends decades and millions of dollars making sure a specific shade represents their hard work, the law will protect them from copycats, but the hoops they have to jump through are massive.
References (APA 7)
Campbell Soup Co. v. Armour & Co., 175 F.2d 795 (3d Cir. 1949).
Deere & Co. v. Fimco Inc., 239 F. Supp. 3d 964 (W.D. Ky. 2017).
In re Owens-Corning Fiberglas Corp., 774 F.2d 1116 (Fed. Cir. 1985).
Libertel Groep BV v. Benelux-Merkenbureau, Case C-104/01, ECR I-3793 (2003).
Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995).
Société des Produits Nestlé S.A. v. Cadbury UK Ltd, EWCA Civ 1174 (2013).
Société des Produits Nestlé S.A. v. Cadbury UK Ltd, EWHC 1671 (Ch) (2022).
Trade Marks Act 1994, c. 26 (UK). https://www.legislation.gov.uk/ukpga/1994/26/contents
