Prince’s Estate look to colour as next right to capture

Written by Margaret Briffa | October 30, 2018

Trade Marks

We reported here back in September on the efforts of Prince’s estate to clamp down on a bootleg label dedicated to the Purple One. Now Paisley Park Enterprises, the company that manages Price’s rights has the bit between its teeth again, this time applying to the US Patent and Trademark Office for a trade mark registration for the colour purple.

There is no denying that the colour purple is associated with Prince and after the success of the song Purple Rain it was used to define his imagery. The question though for the trade mark office is whether the estate should have a monopoly right over the use of the colour purple in respect of live and recorded music. Specifically the company is trying to secure exclusive rights to shades similar to Love Symbol#2, a pantone colour created last year in memory of the singer.

As a first question it is not clear whether Pantone who developed the colour in conjunction with Prince’s Estate think about the attempt to trade mark the colour. That aside, the big question is: What are the prospects for securing this mark?  The headline answer is that it is possible to secure rights in the use of colour or more specifically a particular shade of colour for particular goods and services but it is not easy.

Recent battles in the UK have tied up Red Bull and Christian Louboutin in numerous rounds of argument. The view of Courts is that consumers do not perceive colours as trade marks i.e. the colour of something is not generally linked in a consumers mind as indicating origin and for that reason it is difficult to show that a colour or colour combination (as in red Bull case) is distinctive of the goods and or services for which it is used. There is also a reluctance to allow a company a monopoly over a colour in the same way that it is reluctant to allow a monopoly over an ordinary English word that another business may want to use. Red Bull have been unsuccessful in their attempt to trade mark their colour combination which lacks specific particularity as to what the mark should look like. Louboutin’s case is still to be finally determined. Louboutin are arguing that the colour does not of itself have intrinsic value but that it has made the colour red used on its shoe soles valuable through its huge marketing effort. Louboutin are taking this line to get round the rule which prohibits the registration of marks where the colour itself is the thing that is deemed ‘intrinsically valuable’. This is not an easy argument to make and indeed is surely up there on the list of surreal arguments that lawyers must make out to achieve a client’s aims.

For the time being as the law around registration of colour marks develops what happens with the application made by Paisley Park is of great interest. There is no doubt that if a colour mark can be secured it is potentially hugely valuable to the business that secures it. It is however clearly not a straightforward matter and any business contemplating it may need to prepare itself for a potentially long and costly battle.

Written by Margaret Briffa

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