The Strange World of Colour Copyright

We know that colour is vitally important in marketing. Thanks to a number of studies over the years, it’s now established that over 80 percent of the visual information our brains process is related to colour – when we look at a can of Coca Cola, it’s the red our brains are taking in, not the fancy lettering. And companies have recently started to take notice of this. Across the world, court cases are cropping up as giant multinationals sue one another over an infringement of colour copyright. Here we examine a few of the most-famous cases and ask, is it really practical to copyright a colour?

Cadburys and the Colour Purple

Can you automatically picture Pantone 2865c? You may not think so, but you can: that string of numbers and letters is designer code for the shade of purple that has graced Cadbury’s chocolate bars for almost a century. A few years back, the company tried to copyright it – and ran into opposition from rival chocolate giant Nestle.

The problem came from Nestlé’s habit of wrapping their chocolate brazil nuts in a layer of Pantone 2865c foil; something Cadbury’s claimed would be a copyright infringement. In 2011 and 2012, the courts ruled in Cadbury’s favour – effectively outlawing Nestlé’s use of the shade. But then in a final ruling in 2013, judges overturned Cadbury’s previous wins and ruled for Nestlé. The result: Pantone 2865c is now free to be used by any chocolate company.

T-Mobile and Magenta

T-Mobile (and its parent company, Deutsche Telekom) are renowned for their use of magenta in their logos… and the extent they’ll go to protect their right to it. A couple of years ago, the company sued a telecommunications blog for copyright infringement in a case that copped them a lot of bad publicity. More recently, however, they’ve engaged in a court battle with fellow industry giant AT&T for using a similar but different shade to advertise their wares (via a subsidiary). T-Mobile, it should be noted, does indeed have a copyright on one particular shade of magenta; although not the one AT&T have been using. At present the case remains pending and the outcome is uncertain.

Yves St Laurent and the Red Shoes

In 2011, fashion company Yves St Laurent (YSL) brought out a pair of red-soled shoes. This seemingly-innocent action resulted in a furious lawsuit from Christian Louboutin, a company that had made red soled shoes famous among celebrities. In a long and torturous journey through the courts, Louboutin’s claim was first thrown out when a judge ruled that colour is inherently functional in fashion (and therefore ineligible for copyright), before a compromise ruling was reached at the end of 2012. Louboutin were allowed to keep their trademark for red soles, with the proviso that companies could imitate it so long as the rest of the shoe was also red.

Does it Matter?

Although the three cases described above involved large companies and received a lot of press attention, similar lawsuits are making their way through the courts all the time. Often the company involved can come out looking vindictive or with egg on their faces; particularly if the target of their lawsuit is a small ‘underdog’ business. So we have to ask: is it worth copyrighting a colour?

On the one hand, a strong colour palette can forever associate your brand with a striking image; the value of which possibly can’t be overestimated. Where would Apple be, for example, without their commitment to shiny whiteness and black turtlenecks? On the other hand, pursuing a claim vindictively can result in – at best – negative publicity and at worst a gigantic lawyer’s bill of millions of pounds. In short, it’s a legal and ethical minefield. The only thing we’re certain of is that it won’t be going away any time soon.