Taking the Rainbow to Court





By the Law of the Sea, no nation owns the planet’s oceans. Nor does any of us own the sun.

Surely the same would be true of the colors that sun makes possible?

But a piece in The Hustle drew interest all over the internet last week with its rhetorical taunt, “Can a corporation ‘own’ a color?”

Because the answer was yes.

Corporations already own our psyches. Shopping for fabric of a certain hue, I might easily describe it as “Post-it yellow”—a visual shortcut far easier than invoking bleached canary feathers. Most women can spot Tiffany blue a mile away. Bright orange handles conjure a Fiskars craft project; go a shade deeper, and you are in Home Depot; brighter, and you are eating a Reese’s.

We are rats, in other words, pedaling ever faster, focused on all those bits of colored cheese the ads dangle. We learn by association, and we do not forget. That is troubling enough. But thanks to The Hustle, I now realize that companies not only seduce us with color, they own it. Since 1985, it has been possible to trademark colors that identify a particular product or service, preventing any other company from using that shade even in an entirely unrelated industry.

Why should this bother me? The U.S. Supreme Court is not going to stomp into my bedroom and tell me I cannot paint the walls that lovely peachy-pink Owens-Corning commandeered for its fiberglass insulation. (The justices apparently have more pressing concerns in my bedroom.) Trademarks only limit other commercial entities from using a company’s signature color.

Nonetheless, the very thought of commodifying a color feels wrong. The best present my mom ever gave me was the 64-box of Crayolas. I knew money was tight and she had splurged; the school supply list only required the basic box. But I fell madly in love with periwinkle and goldenrod and magenta and thistle pink and spring green—loved the poetry in their names, loved the way they stood still as choirboys in that tiered box, waiting to sing. The crayon in my hand did not own periwinkle; it merely lent it to a twilight sky—and then to a field of wildflowers, then to a hair ribbon.

Colors attach themselves to stuff, of course they do. The top four best-selling OPI nail polishes of the past twenty years are Bubble Bath, Big Apple Red, Tickle My France-y, and Alpine Snow, no doubt boosted because their names do conjure their colors, and their colors conjure moods.

But one should not slam a frame around a particular color’s mood and make it off-limits to the rest of the world.

This nonsense started, I read, with that fuzzy pink insulation. Instead of making their fiberglass insulation the usual drab beige, Owens-Corning had the brilliant idea of dyeing theirs a shade I would call shell pink and the company insisted was Owens-Corning pink.

Now, as is usually the case when money tangles with identity, property, greed, and rivalry in the legal system, litigation is getting out of hand. Prince is trying to posthumously patent purple? That sentence was irresistible, but it is false: Prince’s estate is trying to trademark purple. A patent would only last for 15 to 20 years. Trademark protection extends indefinitely.

The U.S. Patent and Trademark Office used to have more sense. It handed Campbell’s its red and white combo but refused to give John Deere bright green. Then Owens-Corning spent so much money telling us to “think pink” and letting the Pink Panther stalk across its ads that it battled five years to trademark the delicate hue of its wall stuffer. And then, in 1995, Qualitex pestered the U.S. Supreme Court to honor its claim on the green-gold of its cleaning pads.

Now, the battles rage across the (UPS brown) earth. The Hustle story opens with a poor little insurance company receiving a scary legal missive accusing them of copyright infringement because they happened to use the color magenta. My old Crayola fave. Nobody but T-Mobile can use it now. The corporate lawyers at its parent company, Deutsche Telekom AG, have spent at least twelve years insisting on that—and they have successfully extended “magenta” beyond the trademarked Pantone Rhodamine Red U to neighboring shades as well.

Only one example in all the litigation makes sense to me: Louboutin’s swift suit when Yves Saint Laurent infringed on its trademark red shoe soles. But that sole is more than red; it is irreverence and panache, the essence of statement. A proprietary trademark of that sort is far easier to justify than Mattel and MCA Records squabbling over the use of bright pink for the single “Barbie Girl.” (The judge told both sides to “chill.”)

In the satire Idiocracy, people in the near future are named Frito, Beef Supreme, Doctor Lexus…. Their very identities are indistinguishable from the commodities that engulf them. The message of this trajectory is no subtler. A pink that once looked like a sweetheart rose now reminds us of an impossibly skinny, hard plastic doll. Colors we used to name for skies and pine trees and cardinals and goldfinches and seashells now make us think of corporate logos and product lines. After decades of failed outrage over the commodification of women—of all of us—we can now watch our reference points in the outside world be commodified, too. Corporate lawyers make a fortune tying the courts up with lawsuits over color trespass. Graphic designers lose their minds trying to figure out what colors are still fair game. Not even the speed of light is infinite, and the points along the spectrum will be used up pretty fast. We will run out of colors.

First advertising snatched melody and gave us earworm jingles. Then it took our hopes and dreams and pretended its stuff was an even exchange. And now it has stolen our Crayolas.


Read more by Jeannette Cooperman here.