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Ann Bartow’s lecture, The True Colors of Trademark Law: Aesthetic Depletion and the Distortion of Social Meaning, was one of the more fun and interesting lectures I’ve attended. Not merely was the presentation infused with her great enthusiasm and knowledge of the topic, but the focus of colour and intellectual property was tantalizing.
The problem of trademarking or patenting a colour is something I’ve encountered in the past. Bartow’s prime case study presented in the lecture was that of Qualitex’s attempt to trademark it’s particular shade of green-gold for dry-cleaner pads. Through that, Bartow itemized some of the problems with trademarking a colour:
What Bartow and the audience had a difficult time trying to decide was whether the problems of the functional and communicative aspects of colour in products & services should be handled together or as separate issues. Although it’s extremely difficult to discuss one without the other, or even consider one without the other, there was general consensus that the importance of the functional versus communicative aspects of colour were distinct of each other.
Bartow also noted that although companies register “colour alone” trademarks, none of them actually use colour on their own. While it may be the predominant aspect of their visual identity, the colour is never used without at least the name of the company (e.g. Qualitex).
The scariest thing, from an artist’s perspective, about a company being able to register a colour trademark is the company’s sudden and expansive reach to leverage that trademark as a tool for censorship. Companies are already abusing copyright law to silence anything from criticism to general incidental inclusion of their intellectual property. Allowing a company to trademark something as primary as a colour could have potential to prevent works of art from being created in a much more sweeping fashion than protection of a specific image. To my relief, Bartow noted that courts very rarely grant colour trademarks, and the scope of the trademark is usually very limited when it is granted.
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