The Significance of colour in the realm of IP

INTRODUCTION

The world of business is extremely dynamic and competitive. The basic concept of branding has evolved on different levels. Considering the branding and marketing strategy, the methods used by top businesses to stand apart from their rivals is truly impressive. The idea to have a catchy name to sound distinctive or an appealing logo is just not enough and here the play of colours begin. To be identified as an established brand, one’s brand identity must be appealing to its customers.

Colours play an extremely important role when it comes to attracting customers and essentially establishing an identity for the brand. Colours influence the human mind and naturally elicits emotions and memories. Colours have a lot of appeal towards one’s mind than they realise.

The Power of Colour in Intellectual Property Law

The word “Trademark” as the name suggests deals with traditional marks such as names, symbols, logos. The subject of trademarks is wide in nature hence the protection of colours used in logos, names, themes also come under the purview of trademarks. Section 2 (1) (zb) states that a “well known trademark” is a mark that can be graphically represented and is unique in nature which helps in distinguishing one entity’s goods from another. For a colour trademark to be considered unique in nature, the colour used must precisely blend in with the aesthetics of the brand which shall give a unique identity to a product that will act as a source identifier for the general consumers in the market. As per section 2 (1) (m) of the act, “mark” of the product must establish its unique identity through specific design, shape, and packaging in which the colour combination employed plays a significant role. This protects the brand’s uniqueness from other players in the market.

Red Colour – Coca-Cola is one of the few brands that has achieved a level of recognition which it makes it easily distinguishable. The essential aspect of this brand’s identification is its association with the colour red. The red shade helps Coca-Cola standout on the retail shelves attracting its customers over its competitors. This red tint essentially embodies the brand’s lively and invigorating character. The same strategy has been embodied by many renowned brands like Dr. Pepper, Netflix, H&M, Canon, CNN. The brand Oracle use the catchy red colour fonts to stand apart from its competitors and attract customers instantly.

The catchy blue colour has become a synonym for the word “social media” that makes us think about the blue colour of Facebook. Blue is a colour which is associated with stability, depth and trust which are essential qualities and traits of a successful social networking site. Similarly, the blue colour has been adopted by LinkedIn and Twitter to embody the trait of trust, depth and stability. A peculiar Blue shade has been embodied by Tiffany & Co. This luxury jewellery business has got the distinctive robin’s blue egg patented which is widely known as Tiffany Blue. This specific blue colour gives the product a luxurious and sophisticated touch which exudes elegance and exclusivity.

Similarly, the colour green, which is represented by brands like Spotify, Starbucks, Land Rover are associated with growth and prosperity. The colour Magenta, which is adopted by brands like COSMOPOLITAN, Barbie, LG are associated with creativity, passion, and emotional balance. The thinking behind using a specific colour for a specific brand is certainly apt for the brands that represent such specific colours.

In the well-known Cadbury case, Cadbury Uk Limited v. The Comptroller General of Patents, Designs, and Trademarks & Société Des Produits Nestlé S.A., Cadbury argued that their unique shade of purple (Pantone 2865C) on the plastic wrappers used for packaging the chocolates has acquired a distinctive character over the years of selling millions of chocolates around the world building a great reputation in front of its customers. A public poll was filed in support of this contention, which was approved on October 1, 2012, following a long legal battle with Nestle.

In the case of Deere & Co. & Anr vs. Mr. Malkit Singh & Ors. , the Plaintiff was granted protection for the use green and yellow colour combination on their tractors by the Delhi High Court in 2018. This combination helped the plaintiff gain a unique identity in the agricultural tractor market through its distinct design and the reputation the brand has built for itself over 10 decades which acted as an instant source identifier for the product.

These instances of brands and their association with specific colours shows us the strategic value of colour when it comes to branding. It’s not enough for a brand to choose a colour that looks beautiful and is aesthetically complimenting, a colour of a brand must appeal to its customers and must carry the brand’s identity along with it which should have a meaning towards the target audience that sets it apart from its rivals. To assure security and integrity of a brand’s identity, the trademark of the brand must be registered so that it could be protected by the law. When it comes to trademarks for colour, the legal aspect of it is complex which is dealt with various opinions and landmark cases.

View of the Courts

In the case of Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd., Colgate sought an ad interim injunction to restrain the use of trade dress and the colour combination of one-third red and two-thirds white, on the container of Tooth Powder. The plaintiff in this case claimed that Anchor was "passing off" Colgate's goods by adopting the similar trade-dress especially the colour combination of "red and white". The court held that a customer perceives the source and origin of the goods from an overall impression of the product through visual looks influenced by the colour combination, shape of the container, packaging etc.

Consumers generally ascertain a product by considering the properties of the product such as shape, size, design and most importantly the colour combination used in the design. Consumers do not generally delve into the intricate details of the product rather; they ascertain a product at first glance. In case the design and layout of the products are similar then, it will easily confuse consumers to believe that the counterfeit product is actually the original product they are looking for. This is known as the act of passing off one’s own goods as those of the other to capitalise on the latter’s goodwill and reputation.

In the aforementioned case, the court recognised colour as an essential part of trade dress and granted protection to it by restraining Anchor from using the colour combination of red and white as trade dress on the container and packaging.

In another case of Colgate Palmolive Co. Limited and Anr. vs Mr. Patel and Anr., Colgate sought a Permanent injunction against the defendants who were manufacturing toothpaste under the name of AJANTA and were using the same trade dress and colour combination on the packaging of their toothpastes. But the court in this instance gave a judgment against the plaintiff stating that Colgate cannot have monopoly over red and white colour combination even though they have the red and white colour combination registered. The Hon’ble Delhi High Court justified its decision by noting the fact that there are 16 Indian and 8 international toothpaste brands that have already employed the red and white colour combination in their trade dress. Therefore, it was held that the red and white colour combination belonged to a common trade dress hence the defendant is not liable for infringing the plaintiff’s product.

When courts approve non-conventional trademarks, such as colour combinations, they guarantee that the test of uniqueness is stringent. Since colours are considered to be non-conventional trademarks and for a colour combination to be registered as a trademark, the colour combination of the product must be so distinctive and unique that the colour combination acts as a direct source identifier of the product. The colour combination in such cases have transcended into giving the product a secondary meaning and a distinctive identity.

CONCLUSION

In conclusion, a definitive rule to determine whether a colour combination has gained uniqueness or not depends on how the colour combination gives a specific brand its respective identity and how the customers resonate with it in the market. When a brand has achieved its niche, the colour represented by the brand defines the brand’s personality and sets it apart from other brands. But it must be taken into consideration that if a brand represents a colour, then it cannot have monopoly over that colour prohibiting other brands from using a specific colour which will result in unfair trade practice. A colour combination shall be viewed from a wider perspective where colour gives identity and recognition to a brand in a certain way which defines its niche and purpose of existence.