Colors Companies Own: Tiffany Blue, Cadbury Purple and the Law of Color Trademarks

Some of the colors you mix back in On Brand are worth more than the paint. A handful of companies have spent decades, and a lot of money on lawyers, turning a single shade into legal property: Tiffany's blue box, Cadbury's purple wrapper, the red under a Louboutin heel.

Owning a color is harder than owning a name or a logo, and the limits are revealing. Here is how the law works, and what happened in the famous cases.

In the United States, the question was settled in 1995. In Qualitex Co. v. Jacobson Products Co., a unanimous Supreme Court held that a color alone can be a trademark. Qualitex had put a particular green-gold on the pads of dry-cleaning presses since the 1950s, and a rival began copying it in 1989. The Court saw no reason a color could not do what a word or symbol does, which is tell buyers whose goods they are (Qualitex Co. v. Jacobson Products Co.).

Five years later, in Wal-Mart Stores v. Samara Brothers, the same Court added the catch. A made-up word can be distinctive the day it is coined. A color, the Court said, can never be distinctive on its own from the start. It has to earn it.

Two other points shape everything that follows. First, a color mark covers a kind of goods or services, never the color everywhere: owning a shade for jewelry boxes does nothing to stop a painter using it. Second, each case turns on a specific shade, which is why court papers are full of Pantone numbers.

Courts on both sides of the Atlantic come back to the same handful of questions.

1. Do buyers already read the color as one company? Lawyers call this secondary meaning. Owens-Corning had made its insulation pink since 1956 and advertised it heavily, Pink Panther and all. In 1985 a federal appeals court accepted that the pink had come to mean Owens-Corning and let the company register it.
2. Does the color do a job? A color that is useful in itself cannot be locked up, a rule called functionality. In 1982 a federal court in Iowa refused to let John Deere stop a rival selling front-end loaders in Deere green, because farmers want their loaders to match their tractors. In 1994 a federal appeals court refused to let the maker of Mercury outboard motors register black, because black goes with nearly any boat and makes an engine look smaller.
3. Is the color described exactly? In Europe, the Court of Justice's 2003 Libertel ruling, about a Dutch phone company's orange, held that a single color can be registered if it is described precisely and durably. A printed sample on its own can fade and is not enough; an internationally recognized color code can do the job. It added that a color will rarely be distinctive without long use, and that there is a public interest in not letting a few companies take up the limited range of colors.

Tiffany & Co. traces its blue to the cover of its Blue Book catalog, first published in 1845, though the company has said there is no definitive answer as to why that shade was chosen. The color has been a registered trademark since 1998. In 2001 it became a custom Pantone color, named 1837 Blue after the year the company was founded and not available to anyone else (Tiffany Blue).

Tiffany's case is the textbook example of secondary meaning. Show most people a small box in that blue with a white ribbon and they will name the jeweler before they name the color.

Cadbury has wrapped Dairy Milk in purple since 1914 and set out to register the shade, Pantone 2685C, for chocolate. Nestlé opposed. In 2013 the Court of Appeal of England and Wales ruled that it could not be registered. The trouble was not the purple but the description: the application covered purple on the whole wrapper or as its predominant color, which the court held was several possible signs rather than one. In 2014 the UK Supreme Court refused Cadbury permission to appeal.

The fight was not over. In 2018 the Court of Appeal turned down another Cadbury argument, this time an attempt to save an older registration of the purple by reading it as two marks and dropping the troublesome one. Shoppers still read the wrapper as Cadbury. The law needed the claim to be stated exactly, and it wasn't.

Christian Louboutin registered its red-lacquered sole as a trademark in the United States in 2008. When Yves Saint Laurent sold all-red shoes, red soles included, Louboutin sued. In 2012 the Second Circuit upheld the mark but limited it to a red sole that contrasts with the rest of the shoe. A red sole on a red shoe does not infringe, because the contrast is what buyers recognize.

In 2018 the Court of Justice of the European Union decided a different question in Louboutin's favor: a color applied to the sole of a shoe is not a "shape" mark, so it could not be struck down under the rule that bars registering a shape that gives goods their value.

UPS says it painted its vehicles brown from 1919, the year the name United Parcel Service first appeared. The brown is registered as a trademark for its vehicles and uniforms, and in 2002 the company built a whole advertising campaign on it: "What can Brown do for you?" When a company can use its color as its name in a slogan, the secondary meaning is beyond argument.

T-Mobile's parent, Deutsche Telekom, treats magenta as a core asset. In 2014 a court in Texas stopped AT&T's prepaid brand Aio Wireless from covering its marketing in large blocks of plum, Pantone 676C, after T-Mobile showed that 56 percent of people surveyed linked magenta to T-Mobile. A rival does not have to copy a color exactly to be told to stop; it only has to come close enough to confuse.

The company has gone further. In 2019 Deutsche Telekom got a German court to stop the insurer Lemonade using its pink in marketing in Germany, a case Lemonade fought publicly, challenging the mark at the European Union's trademark office and elsewhere. Whether a phone company's magenta should reach into insurance is exactly the kind of question color law keeps asking.

All of these cases involve colors that are unusual in their market. That is not a coincidence. Blue is the commonest color in logos by a distance, and a color every bank and tech company uses cannot point to any one of them. The colors companies manage to own are the ones they had largely to themselves: purple in chocolate, pink in insulation, robin's-egg blue in jewelry. What research says about brand color psychology covers the other half of the choice, the fit between a color and what a brand wants to say.

Owning a color also commits a company to holding it steady. Brand guides write a protected color down for every medium, as a Pantone ink, a print mix and screen values, and why brand colors look different on every screen explains why those versions still never match perfectly.

The trademarked shades are the ones companies police most closely, so they are among the most consistent colors you will ever see, on boxes, vans and screens alike. If a brand is famous for its color, trust that you know its family, and spend your effort on the exact shade: how deep, how vivid, which way it leans. Those are the details the lawyers fought over too.