Can you copyright a colour?

The short answer: no, you cannot copyright a colour.

The slightly longer answer: it is possible to exercise monopoly control over the use of colours in certain contexts and circumstances under the laws regulating other intellectual property rights.

Copyright protects the original expression or fixation of ideas in the form of literary works, artistic works, musical works, dramatic works and other types of creative works. In other words, copyright cannot protect the colour yellow, or a particular shade of yellow, or the idea of using a particular shade of yellow in a particular creation. However, copyright can protect a particular creative work (e.g. an original artistic work, such as a drawing or a painting, which has not been copied wholly or substantially from another work) incorporating the colour yellow (i.e. in the context of that particular work, copyright can protect colour; but the use of the colour yellow in the context of a completely different work would not constitute copyright infringement).

Design rights protect the appearance of new products (and appearance in this context includes features like shapes, lines, textures and colours). In other words, design rights cannot protect the colour red, or a particular shade of red, or the idea of using a particular shade of red in a particular product. However, design rights can protect a particular product (e.g. a sofa, the appearance of which is new and has individual character in the sense that it does not produce the same overall visual impression as any other sofa already disclosed to the public) incorporating the colour red (i.e. in the context of that particular product, registered designs can protect colour; but the use of the colour red in the context of a completely different product would not constitute registered design infringement).

Trade marks protect ‘brand identifiers’ that customers use to find products and services, and distinguish the goods and services of one trader from those of another. The ‘brand identifiers’ that may be registered as trade marks include, words, slogans, logos, pictures, moving images, shapes, sounds, smells and … colours. However, in order to be registrable and enforceable, a trade mark must be distinctive (i.e. consumers must be capable of using the mark to distinguish the goods and services of one trader from those of another). Distinctiveness may be inherent (e.g. Starbucks is inherently distinctive in relation to coffee because the word has nothing to do with coffee so consumers can easily use the word to distinguish the goods and services of that coffee company from those of any other coffee company) or acquired (e.g. The Gym Group is inherently non-distinctive in relation to gyms because the phrase describes the nature of the services being provided so consumers may see the phrase as purely descriptive and may not be able to use the phrase to distinguish the goods and services of that gym business from those of any other gym business; however, The Gym Group has likely now acquired distinctiveness through use over time, such that consumers can now use the phrase to distinguish the goods and services of that gym business from those of any other gym business).

Words, logos and slogans are common/traditional trade marks (i.e. consumers are accustomed to using words, logos and slogans as brand identifiers to find and distinguish between goods and services e.g. the word McDonalds and the ‘golden arches’ logo and the “I’m lovin’ it” slogan, the word Nike and the ‘swoosh’ logo and the “Just Do It!” slogan). Conversely, shapes, sounds, smells and colours are less common/traditional trade marks (i.e. consumers are less accustomed using shapes, sounds, smells and colours alone as brand identifiers to find and distinguish between goods and services).

For this reason, intellectual property offices and courts have tended to require less common/traditional types of trade marks to have demonstrated a relatively high level of acquired distinctiveness before recognizing the trade mark as registrable and enforceable. Therefore, you will most likely already be aware of the following household names whose businesses/brands have secured trade mark protection for a colour: Tiffany (blue); Post-It (Canary yellow); UPS (Brown); and Cadbury (Purple).

In a recent High Court ruling, involving Cadbury’s trade mark for the colour purpose, the court gave some very helpful guidance regarding the registrability of colours as trade marks in the UK, including:

• An application to register a colour as a trade mark must consist of a sign, be capable of graphical representation, and be capable of distinguishing the goods or services of one undertaking from those of other undertakings;
• The trade mark applied for must satisfy the requirements of clarity, intelligibility, specificity, precision, accessibility, uniformity, self-containment and objectivity (i.e. to avoid an overly broad or vague claim for protection);
• The inclusion of a recognised colour reference in the trade mark application, such as a Pantone or RAL number, is important (i.e. you may be granted trade mark protection for a particular shade of green, but you will not be granted trade mark protection for all shades of green because, as above, the claimed protection would be overly broad/vague); and
• The inclusion of a clear and precise definition of how the colour will be used (e.g. how the colour will be applied to the product or its packaging) is critical to the success of the application (even if that description is simply that the colour will be applied to the whole surface of the product).

In summary, you cannot copyright a colour as such. However, copyright, design rights and trade marks are relevant if you seek to protect a certain amount of monopoly control over a colour. As explained above, copyright and design rights may protect the use of a particular colour in the context of a particular work or product respective. And trade marks may protect the use of a particular colour as a brand identifier registered/used in relation to specified goods/services (provided that the trade mark application complies with the requirements set out above).

Briffa are experts in all aspects of intellectual property law and practice. If you have a question or concern about the protection, commercial and/or enforcement of your IP, please get in touch to arrange a free consultation.

Written by Éamon Chawke, Partner