Blue is the colour – perks and challenges of colour marks
Colour is a vital element of modern branding. The psychological associations evoked by different shades are carefully considered by brand strategists due to their influence on purchasing decisions. Studies suggest that 93% of consumers place most influence on visual factors when choosing products and that colour increases brand recognition by up to 80%, meaning selecting the right shade is an important decision for marketers. Red denotes passion and appetite, orange inspires energy and confidence, green conveys tranquillity and yellow optimism and happiness. The most popular brand colour of all, according to the USPTO, is blue, which is associated with trust, reliability and strength and is consequently sought after by financial institutions, technology companies and is used by the UK’s treasured National Health Service.
Despite the importance of colour to brands, relatively few have gone as far to bid to “own” a particular colour in their sector by registering it as a trademark. Even brands whose colours are ingrained in consumer consciousness, such as Coca Cola, have contented themselves with comprehensively wrapping up traditional trademarks. This is likely because proving that a specific colour fulfils the legal requirements for use as a trademark – being capable of uniquely and entirely identifying the commercial origin of products and services without serving any other significant function – is not easy. Colours are never distinctive in their own right, therefore successful registration hinges on proving that the colour has acquired distinctiveness over time and that the colour is neither a practical or aesthetically functional feature of the products.
Nevertheless, some brands have succeeded to iconic levels, and some have battled long and hard to secure a colour mark. Here is a look at the business of blues…
The little blue box we all want to receive…
Why is jewellery more appealing if it comes in a little blue box? Perhaps because that unique packaging tells the consumer that the box contains a precious piece from iconic New York jeweller Tiffany. Arguably no brand has been more successful in associating itself exclusively with a colour than Tiffany, which was founded in 1837 and was first seen using its signature robin’s egg blue at the World’s Fair in 1889. In the intervening century, the “cool and fresh aquatic blue shade” that “speaks to vibrancy, optimism and escape” (according to Pantone experts) became synonymous with luxury. This was achieved through consistent marketing that reinforced the exclusivity and desirability of not just Tiffany products, but even their packaging. Founder Charles Tiffany refused to sell boxes on their own, making the presentation of the box itself synonymous with receiving a Tiffany gift.
This meant that, by the time the application to register the colour as a trademark was made in 1998, it had developed the necessary acquired distinctiveness, and its association with the brand was assured. This was further reinforced in 2001, when the company partnered with the Pantone Colour Institute to standardise the hue. It was named Pantone 1837, or 1837 Blue – another neat marketing move reflecting the year of Tiffany’s foundation.
The true value of Tiffany’s brand and its iconic colour mark was thrown into the spotlight in 2019 when Moet Hennessey Louis Vuitton (LVMH) made a bid to acquire the company. Its initial bid of $14bn was rejected and the deal eventually closed at $16.2bn. In 2019 Brand Finance valued the Tiffany brand alone at $5.895bn, making it the 351st most valuable brand in the world.
Nivea undertakes long-running battle for blue in cosmetics
A longstanding blue-focused brand that has had more of a bumpy trademark ride is that of German skin care company Beiersdorf. It has been using blue both for its company logo and flagship product, Nivea crème, since 1927.
In 2005, Nivea applied to register Pantone 280C as a trademark in the category of cosmetics, specifically in skin and personal care products. When the right was granted in 2007, UK-based Unilever – which has its own line of blue-branded products – applied for cancellation on the basis that, unlike Tiffany, Nivea had not acquired the necessary distinctiveness for the granting of a colour mark.
This was the start of more than a decade of wrangling between the two brands, hinging on surveys conducted on behalf of Beiersdorf aimed at proving that a high proportion of consumers recognised Pantone 280C as synonymous with Nivea. In 2019, after a survey showed 58% of German consumers expected dark blue containers to contain Nivea products in relation to specific products, Beiersdorf limited its application to those products and Unilever subsequently withdrew its cancellation application.
Not satisfied with the mere withdrawal of the application, however, Beiersdorf pressed for a further final judicial decision, but the Federal Patent Court resisted on the grounds that the withdrawal of the cancellation application removed any requirement. So Nivea Blue remains under trademark protection, but Beiersdorf failed to receive a final decision confirming its colour mark as distinctive, which could potentially leave it open to challenge in future. You can read more about this here.
Shipping company secures sea blue
Despite the inherent challenges of registering colour marks, they are still desirable. Shipping company MAERSK recently celebrated obtaining a Danish colour mark for Pantone Maersk Blue related to sea freight transport. This is only the second colour mark to be granted in Denmark. Supporting its application was a survey showing that an impressive 88% of the relevant public associated the colour with Maersk.
In our increasingly visual society, colour will likely increase as a battleground for brands and we may see more companies embarking on the challenge of claiming a colour mark.
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