Photo by Tommao Wang聽
Ariel Goldberg is a third-year undergraduate student at 91亚色.
For most, Tiffany鈥檚 robin鈥檚-egg blue box immediately represents luxury jewelry. However, British artist Stuart Semple considers Tiffany Blue as being held captive through trademark law. To , Semple created 150 ml tubes of matte acrylic paint named which replicates Tiffany & Co鈥檚 signature hue.
Semple has been , with previous paints replicating trademarked colours including , , and . His is to increase the possibilities within art by making accessible what he claims are unattainable colours. Semple has pushed his commentary further by preventing individuals who hold registered colour trademarks from purchasing specific paints on his e-commerce website. Now, Semple鈥檚 most recent paint, Tiff, targets Tiffany & Co by sharing the brand鈥檚 iconic blue with all artists.
was created in 1873 by Charles Tiffany and John Young and has been registered as a colour trademark in the U.S since 1998. colours were outside the scope of trademark protection. The Lanham Act鈥攖he federal trademark statute in the U.S鈥攄oes not include colour in the statutory definition of trademarks. In the 1995 decision, the U.S Supreme Court held that a colour could be registered as a trademark but required that the colour鈥檚 use be non-functional and that it has a In other words, consumers must associate the colour with a single source.
While Tiff paint has sparked conversation about monopolizing colours, Semple鈥檚 strong language on his e-commerce website and social media posts overstates the Tiffany & Co鈥檚 trademark rights. Semple wrote in an Instagram caption that Tiffany Blue is 鈥渢rademarked in every category鈥 and that However, colour trademarks are not synonymous with ownership of the colour. Trademarks are generally registered in connection to specific goods and services, which are divided by industry under the global system. Tiffany & Co has a multi-class registration for Tiffany Blue, but these are all narrowly defined. Tiffany Blue is registered for its use on 鈥渏ewelry pouches with drawstrings鈥 in Class 14. The trademark covers uses of the colour that would reasonably confuse the public to believe Tiffany & Co was the source.
Essentially, trademarks operate as a source indicator. Colour trademarks protect brands if the use of the colour in connection to specific services or goods would confuse customers. Christian Louboutin holds trademark rights for the use of Pantone 18-1663TP on shoe soles and Herm猫s maintains trademark rights for the use of a specific orange on packaging. Again, trademark protection is granted over the use of the colour in relation to specifically defined goods and services. It is not protection for the use of the colour on anything and everything.
In addition, colour trademarks are not effortlessly granted; it is difficult to gain monopoly over a colour. It can take time to develop the required secondary meaning. In the case of , The New 91亚色 Sun reported the iconic nature of Tiffany & Co鈥檚 blue boxes in 1906, which is a significant time frame to be using the colour in relation to packaging and jewelry. Essentially, the colour鈥檚 use was so well known it was functioning as a source indicator before protection was granted. Even if secondary meaning is established, the colour which means that the colour cannot be essential to or a characteristic of the good or service. The functionality doctrine protects competitors against a disadvantage. Ultimately, there are safeguards to granting a colour trademark which prevents widespread and overly broad monopoly of colours. Further, rights are limited to the consistent use of the colour.
Tiffany has yet to respond to Semple鈥檚 paint. Regardless, Semple plans to continue 鈥渓iberating鈥 Tiffany Blue. He , 鈥淚 see the art materials as more of a cultural critique, a piece of critical art [rather] than a business.鈥 While Semple鈥檚 cultural critique exaggerates the protection granted through colour trademarks, Semple has started a conversation. He has also shown the importance in recognizing the limitations and safeguards in colour trademarks.