But, What About the Legal Implications of Color Selections in Brand Strategy?

by Winthrop & Weinstine, P.A.
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Yesterday Thomson Dawson of the Blake Project published an interesting blog post on the Branding Strategy Insider called “The Importance of Color in Branding Strategy.” It is an important read for both marketing types and trademark types, both for what it says, and what it doesn’t say.

How color impacts and induces certain responses in the human brain, how colors can convey a mood and a defined emotional state, the importance of color to a brand’s visual identity, and the importance of selecting the right color for your brand, are very worthy points of discussion in the article. Mr. Dawson goes on to explain: “Selecting the appropriate color to represent and differentiate your brand must be based on several criteria.” And, these are the three most important criteria, according to Dawson: (1) The Target Audience, (2) The Brand Archetype, and (3) The Culture.

What is missing from the discussion, at least from the perspective of a trademark type, is any discussion of the legal implications of color selections in brand strategy. Indeed, it would appear to most trademark types, I suspect, that an important fourth, fifth, and sixth criteria could and should be added to the list: (4) The Competition, and (5) Availability from a Legal Perspective, and (6) Ownability from a Legal Perspective.

Knowing what the competition is doing in the industry — in terms of their color choices and visual identities — would appear to be a key bit of knowledge that should inform how new entrants visually brand themselves (to differentiate from others), and how stalwarts might consider rebranding themselves within a market segment (again, to differentiate from others). This key information also opens the door to the fifth and sixth criteria I’m proposing here.

We have spilled a lot of digital ink discussing examples of when single colors can be owned as trademarks. The reality that color can be owned as a trademark — and be subject to exclusive ownership for specified goods and/or services — must invite the timely inquiry of whether the desired path to adopt and use a particluar color or trade dress carries a significant risk of trademark infringement, dilution, and any liability or damages that might flow from those kinds of legal claims. In addition, again, as a trademark type, what can be owned as a trademark would appear to be an important part of the calculus in determining whether investment in a particular color selection makes sense from a business perspective, resulting in the need for a close analysis of the question of functionality, which is an absolute bar to ownership of a color as a trademark.

In the end, while I have no doubt the Dawson piece provides helpful insights to brand managers and marketing types, readers should take note that it also provides a helpful roadmap for skilled trademark types who might be interested in steering their clients to safe ground based on functionality grounds and also undermining or invalidating the claimed color trademark rights of competitors. As we have seen before, a careful balance is often required in preparing marketing communications that avoid undermining claims of trademark ownership — a balance best struck when legal and marketing types are working together early in the process.

If you’d like to refresh your recollection of these oldies but goodies from the DuetsBlog Archive, please check them out again for more details on the legal implications of making color selections in brand strategy:

By the way, what do you think about the additional three criteria we’ve added to Dawson’s list?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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