#TheDress phenomenon is about to shape the future of color trademarks and trade dress rights.

You may recall, we have written a great deal on the subject of non-traditional trademark protection of colors, especially during the Christian Louboutin red-soled shoe trademark lessons, but more recently we wrote about the legal implications of color selections in branding strategy.

Enter #TheDress . . . .

No one could have foreseen the next viral sensation before last Thursday, and to the extent you’ve been in the dark on this one until now, meet #TheDress that has dominated the press, or most recently provided the most credible threat of “breaking the internet“:

TheDress

BuzzFeed picked up the Tumblr post by “swiked” and promoted it through its widespread distribution channels, and the rest is internet history.

There are basically two camps in this worldwide online debate, one will “say yes to the dress,” perceiving it to be black and blue, while the other will only say yes to the obviously white and gold dress that they see; amazingly both camps are viewing the exact same image.

So, how can that be? According to NBC’s Today Show:

“It’s a perception issue. It’s the way the brain processes information that comes in,” eye surgeon Paul Dougherty told TODAY. “Everyone’s brain is different, so even though it’s the same stimulus coming in, which it is, everyone processes the information differently.”

Others have further explanations for the neuropsychology behind #TheDress phenomenon. Forbes had an interesting guest post from Steven Pinker, professor in Harvard University’s Department of Psychology, that provides a very detailed explanation of why the image of #TheDress provoked the different perceptions:

“Back to the human perceiver. Brains are so good at color constancy that they often succeed even when looking at a photograph of a scene rather than the scene itself. That is, the brain often compensates for color casts in a photo and allows us to see the colors of the objects in the photograph as they would be in the world. But only up to a point – sometimes the same atypical conditions that fooled the camera (such as mixed lighting and unusual materials) can fool the brain, too. The blue-dress photo is one of these marginal cases. Some viewers see the scene as the camera apparently did, interpret the dress as if it were bathed in a bluish light from the shade, and see its colors as white and gold. Others glean enough information from the image to correctly see the dress as illuminated by a brilliant warm light, and hence see the light-bluish portions as deep blue. By the same calculation, a dark yellow patch on the retina (if it came from a surface bathed in bright warm light) would have to be a dark neutral, to wit, black.”

In addition, CNN quoted Dr. Julia Haller, the ophthalmologist-in-chief at Wills Eye Hospital in Philadelphia, as explaining our perception of color this way:

“Ninety-nine percent of the time, we’ll see the same colors. But the picture of this dress seems to have tints that hit the sweet spot that’s confusing to a lot of people.”

Perhaps most interesting, but the least scientific, CBS New York reported one possible explanation of why you might fall into one camp or another:

“Another theory is more philosophical in nature – if you see black and blue, you are dealing with stress in your life, while if you see white and gold, everything is fine.”

You can only imagine what my family did with that theory over the weekend. The stress theory continued to emerge throughout our discussions in my home over the weekend. We comically treated #TheDress image as a modern sort of mood ring deserving repeated measurement, depending on the changing emotional circumstances during any given moment.

My wife and one son, almost exclusively and proudly see white/gold, my daughter and two other sons, accused of consistently having a darker mood, saw only black/blue. What about me? I continue to see white/gold about 50/50 with black/blue.

Perhaps a few hours on a psychiatrist’s sofa would shed some meaningful light on my chameleon like perception? Or perhaps it simply suggests a keen ability to see both sides of an issue, at least until a client picks the right answer. I’m going with the latter explanation.

So, back to the science of color, what does all this say about color trademarks? Since consumer perception controls trademark determinations, will brand owners be inclined to attempt replicating #TheDress phenomenon in their trade dress, packaging, and color marks? Is it even possible?

No doubt, #TheDress is a good reminder that we all perceive color uniquely, so knowing the range of possible perceptions among the relevant population is critical to understanding one’s scope of rights in a single color trademark or color-combination trade dress.

Indeed, assuming a brand owner can replicate the phenomenon, after #TheDress is there such thing as a Single Color Trademark any longer?

What do you think? Will #TheDress phenomenon impact trademark rights in color marks? How?

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