How to copyright colours

Can a colour be trademarked? Well, no and yes. 

No, you can’t get a trademark because a colour is not inherently distinctive. But yes, you can get it if you can establish to the courts that your colour is distinctive. 

Tiffany & Co’s blue and the Cadbury’s purple are easily recognisable by consumers. 

The US Supreme Court, in Qualitex Co vs Jacobson Products Co, recognised that a single colour could qualify as a trademark if it acquired distinctiveness, secondary meaning, and is non-functional. Similarly, in the UK, the court, in Societe des Produits Nestle vs Cadbury UK Limited, granted partial registration for the Cadbury’s purple but emphasised that the colour should meet stringent criteria like clarity, precision, and objectivity. 

Indian courts have taken varied stances on single-colour trademarks. In Colgate Palmolive vs Anchor Health, the Delhi High Court acknowledged that single colours could function as trademarks, but exceptions exist for functional or common colours, like blue for ink. However, in Cipla Limited vs MK Pharmaceuticals, the same court rejected Cipla’s claim over orange tablets, ruling that consumers distinguish medicines by name, not colour. Contrastingly, in Marico Limited vs Mukesh Kumar, Marico’s blue packaging for Parachute hair oil was protected due to its distinctiveness. 

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Christian Louboutin has actively protected its red-soled shoes. In Christian Louboutin SAS vs Pawan Kumar, the Delhi High Court recognised the red sole’s distinctiveness. Yet, in a 2018 ruling, another judge ruled that a single colour could not be a trademark under Indian law, citing the TM Act’s emphasis on “combinations of colours”.

Writing in Mondaq, Anuja Chaudhary and Radhika Arora, from the law firm Sujata Chaudhri IP Attorneys, note that protecting a single colour requires brands to show that the colour has acquired distinctiveness, is non-functional and non-descriptive of the goods and services. “The acquired distinctiveness is required to be accompanied with substantial evidence to show that the general public associates the colour with the brand alone. Thus, registration of a single colour as a trademark necessitates the presence of a plus factor: or secondary meaning associated with that single colour in relation to the product or service.”