Color can be copyrighted, high court rules

March 29, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON — Colors used in a company's products can qualify for trademark protection. A headline in yesterday's editions incorrectly used the word copyright in describing this protection.

+ The Sun regrets the errors.

WASHINGTON -- Somewhere over the rainbow, there may be a color that could turn the most homely and ordinary thing in life into a thing of beauty -- making attic insulation pink, for example. Of such artistic sensitivity can a Supreme Court decision be made.

FOR THE RECORD - CORRECTION

Quoting G. K. Chesterton, ordinarily not a legal authority, Justice Stephen G. Breyer wrote a court opinion yesterday giving makers of consumer goods a right to monopolize a color, keeping it forever away from competitors.

Announcing the decision in a folksy commentary for the courtroom audience, Justice Breyer noted that the Coca-Cola bottle's shape is trademarked. NBC's sound of three chimes is, too. And so is the smell of a particular blossom on a brand of sewing thread.

"If a shape, a sound and a fragrance can act as symbols why, one might ask, can a color not do the same?" Mr. Breyer said. The court, he said, had asked itself that question and had concluded color, too, can be a symbol.

"Over time," the justice wrote, "customers may come to treat a particular color on a product or its packaging (say, a color that in context seems unusual, such as pink on a firm's insulating material or red on the head of a large industrial bolt) as signifying a brand."

Such recognizable colors, he said, can point to the source of the product, and make it stand out against others of a different shade. That, he said, could be enough to qualify for trademark protection -- which is not limited in years, as patent monopolies are, but is permanent.

This was a significant decision for companies that spend wads of marketing dollars to teach customers Pavlovian buying habits: See a particular shade, see a product.

Owens-Corning has done it by dolling up its fiberglass insulation in a soft shade of pink, and that example was mentioned in the opinion. It was the first time the court had ruled that color, alone, can be distinctive enough to gain a trademark. At issue, however, was not pink but green and gold -- the identifying mark of the covers on pads for dry-cleaning presses made by a Chicago company, Qualitex.

Is it a now just a question of time until all the colors are taken? No, Justice Breyer said -- because of complex restrictions in the law, color won't always qualify for trademarks.

The decision made clear that the court was swayed in part by the wisdom of Chesterton, the British author who wrote in 1912 of the "noble instinct for giving the right touch of beauty to common and necessary things."

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