Competition in the fashion industry can be pretty stiff, prompting industry players to find ways of staying on top of their competition by protecting their unique works as intellectual property. Therefore, brands focus on several aspects of their design when seeking protection, such as the original sketches or the aesthetics of the final design. One of the least explored areas of protection is patenting a color palette or color trademarking in the fashion industry; often because of the complexity of the registration process and the fast-changing nature of fashion color trends.
In this post, I provide information about this unique aspect of brand identity protection. When you want to start a fashion business or become a fashion influencer, you can learn valuable lessons in brand management and create a visual identity that stands out in a crowded marketplace. So, let’s dive into the fascinating world of color protection in the fashion industry and discover the secrets behind some brands’ vibrant success.
- Types of Intellectual Property Protection in General
- Can You Copyright Fashion?
- Can You Patent A Color?
- What Is the Patenting Process for Color Palettes?
- What Are Trademark Protections for Color Schemes?
- How Do Trademarks Offer Long-Term Protections?
- What Are the Impacts of Protecting Brand Color Palettes?
- The Importance of Patents and Trademarks of Color Palettes in Fashion Marketing
- References
Disclosure: Sponsored post.
Disclaimer: I am not a lawyer. The information in this post is based on my own experience filing for a patent on a software code together with the University of Alaska and one of my students, the training on intellectual property and copyrights I received within the framework of faculty development, and my work as a journal editor. When you finally go for safeguarding your fashion branding seek professional legal advice.
Types of Intellectual Property Protection in General
Intellectual property refers to the protection of ideas or intangible property. We distinguish between
- Copyright
- Patents
- Trademarks
Can You Copyright Fashion?
The copyright protects original literary or artistic work including jewelry because jewelry is comparable to sculptures or art. Because more than a century ago, the United States Copyright Office determined that fashion is functional, the copyright excludes fashion. It also excludes colors.
For instance, makeup is art. Therefore, Paloma Picasso had to give up her signature makeup with her red-color lipstick because her ex-husband, playwright and director Rafael Lopez-Cambil aka Rafael Lopez-Sanchez, owned the copyright to her makeup look.
Can You Patent A Color?
While getting patent protections for color is possible, the possibility is limited to using the color as part of a design concept. For example, you cannot patent the color green because the color in itself cannot meet the eligibility criteria for patents.
However, if you are patenting your creation, which features a color scheme as part of an entire design, you can get patent protections for the color as part of it. This means if you develop a fashion design concept for a shoe, for example, you can seek to patent the color as part of the entire design.
What Is the Patenting Process for Color Palettes?
As aforementioned, colors or color palettes in fashion design can only be patented as part of an entire design. Therefore, you have to follow the industrial design-registration process.
The first step is investigating if your design is eligible for protection. Eligibility hinges on the design’s novelty, distinctiveness, and industrial applicability. Novelty refers to the originality of the design. It must not have been disclosed anywhere in the world before the application filing date.
The distinctive aspect considers the uniqueness of the entire design. As such, it must not closely resemble an existing design. Regarding industrial applicability, the design must be intended for a specific product.
Once you determine eligibility, the second step is filing for registration with the relevant agency. If you are patenting your creations in Canada, the relevant authority will be the Canadian Intellectual Property Office. In the US, the relevant body is the United States Patents and Trademarks Office.
After filing your petition, it will go through a review, and if approved, you get a registration certificate that guarantees protection for 15 years from the date of filing for registration.
What Are Trademark Protections for Color Schemes?
The most significant challenge in patenting colors and color palettes in fashion is the fast-changing nature of fashion trends. When brands consider the costs involved and how fast trends change, there isn’t much incentive to patent a color.
That said, finding a color scheme that resonates with your brand takes time; once you have it, you want to keep it. So, you will still need to have a way of protecting your colors as part of your brand identity. The most preferred way of protecting your color palettes as intellectual property (aka IP) is thru trademark protection.
For instance, Christian Louboutin has a trademark on the bright “Chinese Red” (Pantone 18-1663) outsole when paired with a contrasting color. This means competitors can’t offer shoes with this combination of sole and upper, but they still can offer shoes with a bright red sole without contrasting upper.
Other examples of color trademarking for clothing and accessories are Hermès’ “Hermès Orange” (Pantone 158 C), Mattel’s “Barbie pink” (pantone 219 C), UPS’s “Pullman brown” (Pantone #159), Tom Brady’s brand “Brady Blue” (Pantone 112-22), Bogetta Ventura’s “Bogetta green” aka Kelly green (Pantone 16-6138 TCX), Tieks’ ballerina flat’s Tieks blue sole.
A “®” designation must accompany all registered trademarks; “TM” designation must indicate marks not yet registered.
How Do Trademarks Offer Long-Term Protections?
However, trademarking colors may still not be as straightforward as trading other brand identifiers like a logo, for instance. However, suppose a brand has used a color or a combination of colors over an extended period such that the color becomes synonymous with the brand. Consistency is easiest to achieve using the same printing shop for color accuracy when creating brand merchandise for visibility.
In that case, the brand can acquire trademark rights for the color. Unlike patent protections, trademarking a color or color palette can offer a lifetime of protection because trademarks are renewable every ten years.
What Are the Impacts of Protecting Brand Color Palettes?
The advantage of color branding is that customers can easily recognize your products and business by the design and color palette. However, due to the globalization of the fashion market the lawyers of fashion brands have to deal with various legal jurisdictions and requirements for trademark registration in foreign countries. Consequently, prevention of unauthorized use and infringement are expensive. These costs of trademarking in the fashion industry are one of the reasons for the high price tags of high-end fashion.
Patented or trademarked color palettes make it harder to create and sell knock-offs. Of course, like Coca Cola keeps the ingredients and respective amounts of their drink’s recipe a secret, you have to safeguard your color codes too.
In the textile industry, brands go even further in trademarking their color scheme. They apply proprietary dyeing techniques, and establish strong relationships with their suppliers and manufacturers.
However, there are also downsides. Imagine, for instance, a brand has a patent on a print-which, of course, includes the colors. If now something goes wrong in the print process, the brand won’t accept the fabric; the print service has to redo the work. As a result, the printing company looses a lot of money because they can’t sell the misprint for a long time-if at all-due to the protection.
The Importance of Patents and Trademarks of Color Palettes in Fashion Marketing
Recent advancements in color-matching software and hardware permit brands to precisely reproduce their colors across various platforms and materials. Therefore, they are (re)recognizable for (former) customers. However, these technical progresses mean that digital color matching, digital watermarking technologies and de-encryption of even encrypted colors and other branding can be done as well.
Everything encrypted by a human can also be decrypted by another human.
Therefore, brands seek patents and color trademarking in the fashion industry as one part of their strategies to safeguard their brand identity, which is important to keep their gained trust of and reputation with their customers. The brands’ color palettes namely evoke emotions, convey messages, and create memorable experiences. Therefore, they are essential to 1) establish a strong brand presence, 2) stand out in a noisy market, 3) cultivate loyalty among consumers, and 4) identify the source of origin.
Tip: When you run a fashion business protect your assets.
It is believed that the human eye can distinguish about 10 million colors, while currently there exist only 2,390 market-driven solid Pantone Colors. The former means you can “invent” a new color like Tom Brady did in 2022. The latter means there exist 2,854,855 combination of two Pantone colors. Of course, you can also use Pantone color look-a-likes.
Note that clothing replica of designer pieces have slightly different colors, and must be identified as replica.
References
Canadian Intellectual Property Office.
Indicators of Source: A Primer on Color Trademarks, 2022.
Learn about copyright and federal government materials.
Mölders, N., 2023. Discover the Relation Between Fashion, Fabrics, Weather, and Comfort. Amazon Publishing Pros.
Shamsian, N., 2023. Trademarking A Color In The World Of Fashion Is Easier Said Than Done.
UK Intellectual Property Office.
United States Patent and Trademark Office.
Featured photo by photo-lime. Source: depositphotos.com.
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