Recently, British artist Stuart Semple made headlines when he created a 150 ml tube of “super flat matte high-grade shade” acrylic paint called “TIFF” and sold it for $28 on his e-commerce site. The buzz around this pre-order project centers on the fact that the tube oozes a particular robin’s egg blue hue, No. 1837 in Pantone’s Color Matching System, which is synonymous with the jewelry brand, Tiffany & Co. In doing so, Semple endeavors to “liberate” the signature shade and make “this once unattainable color” available to “all artists to use in their creations.” However, through this project, Semple also highlights the bounds of protection that colors have as trademarks under U.S. trademark law.
In the seminal case Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995), the Supreme Court held that the Lanham Act permits the registration of a trademark that consists, purely and simply, of a color. Though, not just any color can be trademarked, nor can any trademarked color enjoy widespread protection. As explained in the Qualitex decision, a color mark consist of one or two colors that are used on a particular object and act as a symbol with which consumers identify a particular brand. Examples of popular color marks include Post-Its’ canary yellow adhesive stationary notes or Christian Louboutin’s bright red contrasting outsoles. Likewise, Tiffany & Co. maintains multi-class trademark registration for its blue shade, but only for its use on its boxes, drawstring jewelry pouches, shopping bags, retail services, jewelry featuring the color, and the like. As such, Tiffany &Co.’s trademark registration is specifically and narrowly tailored to the actual and consistent uses the brand makes of the color. Tiffany & Co. does not, in turn, have a monopoly on the color, which would otherwise hinder artists’ ability to use it. Accordingly, if artists incorporate Tiffany & Co.’s blue in their works, it is not necessarily “ILLEGAL” as Semple claims. While it is true that Tiffany & Co. and other brands that have registered color marks do enjoy protections, these protects are limited to specific good and/or services.