I used to keep track of all the outrageous ways in which culture is being locked up through property rights: common words (“entrepreneur” as a trademark), three notes of music (the NBC chimes), smells (mown grass on tennis balls), synthetic elements of the Periodic Table (patents on nano-matter), images of now-deceased celebrities (Marilyn Monroe, Elvis), and more. Since publishing Brand Name Bullies in 2005, I have lost much of my compulsion to collect such stories – but I remain fascinated by lurid sightings of the ownership ethic run amok.
So I perked up when I saw Salon’s recent piece, “Can You Own a Color?” by Jude Stewart. The article is about how certain colors have been appropriated by major companies as trademarks, or more accurately, as “trade dress.” It’s a bit dismaying to realize how much of the color palette in our consciousness has been effectively appropriated by corporate interests, at least as a matter of reflexive cultural identification.
What’s legally ownable may be another matter. Just because UPS has a trademark in that certain shade of brown for its delivery trucks, and just because Cadbury Chocolate has a trademark in that certain shade of purple, does not mean that they own the color outright. But sometimes it comes close. Legally, their trademark is only for colors in a stipulated category of goods or services.
This is not entirely unreasonable. Trademark law is nominally about preventing consumer confusion and fraud in the marketplace. If products looked alike, consumers could easily be deceived. But it gets more problematic because large corporate brands routinely claim highly expansive legal rights over their marks and trade dress, to the extent of suing people for entirely legitimate public commentary and spoofs that allegedly “infringe” on “their” colors or taglines or images. (BoingBoing has a nice list of trademark over-reaching.)
It seems entirely unfair for companies to seize colors and then use their marketing power to give them highly specific, proprietary associations that trademark law will then legally protect. It amounts to a cultural power grab. For example, the shoemaker Christian Louboutin now claims a trademark on red soles. Owen-Corning asserts a property right in pink as used on building insulation. Adidas once sued Payless for making athletic shoes with stripes on their side.
When basic elements of design – such as colors, familiar shapes and common words – are turned into private property, it should be regarded with great suspicion. It amounts to a taking of the alphabet of design. It impoverishes the entire culture. It impedes innovation and competition. And it's ethically offensive. Something to think about the next time a company claims a monopoly on the basis elements of our sensory consciousness.
At right: Heidi Cody's installation art, American Alphabet. How many letter-logos do you immediately recognize, and what products are they associated with?
Update: My friend Paul Alan Levy of Public Citizen Litigation Group has an excellent blog post on trademark bullying by the NFL over use of the word "Superbowl" and Consumers Union's acceptance of this claim -- perhaps because it does its own trademark bullying by falsely claiming that it can prevent companies from boasting about their CU ratings.
Image at top is a poster promoting Rip: A Remix Manifesto.