In this enlightened age of marketing, few people will be clinging to the idea that a brand is just a logo or a colour. So, on the face of it, Cadbury's victory over Nestle, giving it trademark protection on the colour purple (Pantone 2865c) may seem a little trite.
Six steps to protecting a colour as a trade mark
The same might be said of Christian Louboutin, which successfully campaigned against Yves Saint Laurent for the exclusive rights to make shoes with a China Red sole.
Rather than spending their money on lawyers, is it more important for these brands to be investing in developing richer brand propositions and more creative ideas, and bringing them alive in more engaging and innovative ways?
The answer is yes, but not exclusively. To ignore the importance of distinctive brand identities is to ignore a fundamental point: they are essential to consumer choice.
The science bit
This is a deeper matter than distinguishing between different items on-shelf. It has to do with how the human brain decides. For example, a study of taste-tests between Coca-Cola and Pepsi, published in the journal Neuron in 2004, used magnetic resonance imagery to show that consumers choose differently when they know which brand they are drinking (75% chose Coke) compared with when 'blind' (an even split).
However, the decision process went deeper, as the visual identity of Coca-Cola was found to trigger activity in an entirely different area of the brain from that for Pepsi. The visual stimulus triggered a neurological response - and a decision - which, in this case, overrode taste.
To extrapolate more widely: brand identity is more than a corporate label, it is a neurological mnemonic that influences what we think and how we behave. So, dismiss the role of colour at your peril. This isn't a debate about shades of purple or red, but what the promise and meaning of the brands really is.
For colour alone to deliver this depth of meaning is a big ask, however. To deliver meaning, the colour must surely be associated with a wider narrative that it brings to mind. Hermes, for example, makes abundant use of orange in its products and identity, reflecting the shade of leather from its origins as a saddlery brand. Jaguar, for a while, sought ownership of British Racing Green - an ambition scuppered only by the fact that every other automotive brand with its origins in Britain periodically tries the same.
For Louboutin, one can at least imagine a narrative wherein the red sole represents a fiery passion beneath the sophisticated face. Meanwhile, the Cadbury story seems to be one of historical consistency. That might seem dull by comparison, but such a premise has worked well for Tiffany's robin's egg blue (PMS 1837, trademarked) since 1845.
A shady story
Connecting a colour to a brand story takes more than ink, pixels and lawyers. Even if the story is there in the background, it needs to be brought to the fore. Contemporary brands are about far more than static logos and vast swathes of colour; they are about multi-faceted experiences that span not just the marketing mix but the product and service offer, internal culture and business strategy of the brand-owner's organisation.
Apple did not become the world's most valuable brand because it chose to own white. It did so because it delivered a holistic proposition in which almost everything, including the colour, was right. For Cadbury, the value of 'owning purple' comes only when it is symbolic of a broader brand experience that delights consumers at every level - and in that, it will need to invest continuously.
Brands have every right to protect their distinctive identities and it can be argued that it is in the consumer's best interest that they do. However, owning a colour is a small part of building a successful brand.
In the final analysis, it's not ownership of a colour that matters, it's the conscious and sub-conscious impressions that it stirs.
SIX STEPS TO PROTECTING A COLOUR AS A TRADE MARK
By Kate O'Rourke, Trade Mark Attorney
- Identify the precise colour you wish to use. Use a recognised system such as Pantone. If the colour has been in use for a long time and there is no standard reference, Pantone can make one up for you, such as : ‘Heinz turquoise’.
- Gather evidence that the colour has acquired distinctiveness through use. This means using advertising to educate the public of the colour’s importance as part of the brand. For example: ‘Trust Pink, Forget Stains’ (Vanish).
- Keep records of sales volume and value, advertising and promotions, and independent recognition, by reference to the specific colour.
- If you intend to use survey evidence to show acquired distinctiveness, take advice - there are strict rules for surveys and advance permission is needed from the Trade Marks Office.
- Limit and be precise about the colour and the goods or services you want protection for, for example: ‘The colour red RAL 3003 applied to penknives.’
- Make sure that the colour is used consistently. You could do this by providing instructions for use in a brand manual.
QUIZ: SPOT THE BRAND
Red and yellow and ... can you see a brand? Our illustration (above right) has used the colours of well-known brands - but can you identify them from colour alone? Answers below.
Answers: Black = Guinness; White = Apple; Red = Coca-Cola; Purple = Cadbury; Orange = Orange;Blue = NHS; Yellow = McDonald's; Green = Harrods.