Recently users of popular design programmes like Photoshop, Illustrator and After Effects got an unwelcome prompt.
Many of the colours that were freely available to them until that point would suddenly require a $15/month subscription fee to access.
Those who didn't pay up would see those colours turn black – even in old designs they had made, before the new fee kicked in.
The new fee was the result of a dispute between Adobe – the maker of Photoshop – and Pantone, considered by many designers to be the gold standard of colour.
Until recently Adobe users have been able to tap into Pantone’s vast catalogue of colours – each shade identifiable by a unique code – but now they will have to pay for the privilege.
Aside from being a major headache to designers, the row highlights just how far some companies (and people) have gone to claim legal ownership over the smallest of things.
Can you own a colour?
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
Kind of....
The idea of owning a colour actually has a very long history – long before things like trademarks, patents and copyright.
Hundreds of years ago if you wanted a colour for painting or for clothing, you’d have to rely on what you found in nature.
But because some colours are harder to come by than others, that often gave a small number of people – or even a country – a kind of monopoly over that colour.
For example there’s a stone called Lapis Lazuli that was at one stage more valuable than gold, because it was able to give really vivid blues. But, for hundreds of years, the main source of it was around northern Afghanistan – concentrating its control into a small group.
Nowadays, of course, it’s much easier to just produce the colour you want. Even on your phone you can choose from millions of colours for a font when you’re posting a story to social media.
But that hasn’t stopped countless companies trying to claim ownership over certain shades.
Like who?
Coca-Cola is probably the best-known example in the world.
In fact it’s so iconic, it almost goes without saying what colour they’ve trademarked.
The story goes that Coca-Cola originally used red to distinguish their barrels from those containing alcohol – to ensure it wasn’t levied with certain taxes. But the colour stuck, and became a part of its marketing from the mid 1940s on.
Jewellery brand Tiffany & Co is another good example – that powder blue box and bag are a trademarked part of its brand.
Delivery company UPS has trademarked its iconic brown. And 3M has also gotten a trademark for the specific shade of yellow that’s used on its Post It notes.
Does that mean that no one else can use these colours?
Not quite.
It’s nearly impossible to actually stop people from using a specific colour – even in that Adobe/Pantone dispute, some people have published free-to-access catalogues of colours to replace what Pantone is trying to charge for.
But really what a trademark on a colour does is form one layer in a brand’s defence against copy-cats.
So if you were to launch a soft drink in a red can, you wouldn’t necessarily be getting a legal letter from Coca-Cola. But if your brand name was printed in white in a kind of script font, you might be in trouble.
Heineken, for example, successfully sued another Dutch beer brand called Olm about a decade ago and colour was at the heart of the case; but it wasn’t the only factor.
Olm was using green in its labels and bottles too, but it also used a red star in its logo and a similar font – and all of those things together won the day for Heineken.
But if it was a chocolate company, say, that used green packaging with a red star, Heineken would have a harder time claiming that it was trying to dupe consumers.
And having a trademark on a colour doesn’t necessarily mean you have a rock-solid claim.
Until relatively recently Cadbury and Nestlé were locked in a long-running legal battle over the colour purple.
Cadbury had trademarked its use on chocolate bars in 1995, but when it tried to expand that to other products Nestlé objected, and ultimately Cadbury had to back down.
So are there any colours that are truly protected?
Kind of.
Vantablack claims to be the blackest black in the world. It reflects so little light that it’s meant to be like looking at a black hole.
It’s owned and controlled by a British company called NanoSystems, but the protection is more to do with the physics of it, rather than the colour.
That’s because its unique selling point is made possible through a specially developed coating.
It has practical uses in things like satellites and infrared cameras. But it also caused controversy in the art world, after Anish Kapoor obtained exclusive rights to its artistic usage.
That prompted other artists to criticise him, saying he was using his money and influence to block the wider art world from using the material.
And one artist, Stephen Semple, went so far as to develop what he called the Pinkest Pink – as well as extremely dark blacks called Black 2.0 and Black 3.0.
And he made them available to anyone in the world, except Anish Kapoor.
What other unlikely things have legal protection?
Certain types of food are protected – not just brands, but the actual food itself.
Tenderstem Broccoli, for example, is a trademark. It’s held by the Sakata Seed Company, which is a Japanese firm that developed the vegetable itself.
It’s not even really broccoli – it’s a hybrid of broccoli and Chinese kale. It took about eight years to develop, before starting to appear in supermarkets in the late 90s.
And this trend of getting legal protection for a new variety of a food is very popular in the world of fruit and veg – particularly when it comes to apples.
There are a lot of companies trying to blend different apple types together to get the best of both – or maybe to tweak the time of year they ripen, or make them more disease resistant, or more suitable for growing in certain climates.
People will know of Pink Lady – which is a trademarked brand – but it’s applied to a specific, patented variety of apple called Cripps Pink. That’s a hybrid of a Lady Williams and a Golden Delicious apple.
A couple of years ago a new variety of apple called the Cosmic Crisp was launched in the US – after 20 years of development and a $10m marketing campaign.
Apparently one of its big selling points is how long of a shelf life it has. They say it can last for a year in a fridge.
What about sounds?
Yes, lots of sounds have trademark protection – or soundmark protection.
Darth Vader’s breathing is trademarked by Lucasfilm, now a subsidiary of Disney.
It’s defined as 'the sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator.’
The hum of a lightsabre is trademarked, too.
Meanwhile NBC Universal has a trademark on the ‘dun dun’ that’s used on Law and Order.
Sound is used a lot in so-called audio logos, too. These are the short stings of audio that are often used to identify a product or brand.
For example, the little start-up chime that people will remember from Windows – that was an audio logo of Microsoft. Same goes for the start-up chime on a Mac, or an iPhone.
And the short tune that was always played on ads to tell you a computer had a Pentium Processor – that's an audio logo held by Intel.
Songs, of course, can be copyrighted too. But that includes some tunes that you might think of as traditional or generic.
Until recently the ‘Happy Birthday’ song was legally protected, for example.
It was based on a song written by American sisters Patty and Mildrid Hill in the 1890s but ended up in the hands of record label Warner Chapell Music.
It would charge a license fee for any use on TV, film or radio and at one stage was earning $2m a year from licensing the track.
But its copyright was deemed invalid in 2016, when a court decided that it only covered a specific piano arrangement of the tune, not the lyrics or melody.
Warner Chappell ended up paying back $14m in licensing fees.
The protection lapsed in the EU in 2017 – 70 years after the death of Patty Hill.
If jingles are trademarked, catch-phrases must be too?
They often are.
‘Hasta La Vista, baby’ has been trademarked by Arnold Schwartzenegger, for example.
Though he only registered it in 2007 – more than 15 years after the words were first uttered in Terminator 2.
‘Let’s Get Ready To Rumble’ was also trademarked by ring announcer Michael Buffer.
He first used the phrase in the mid-80s, and obtained a trademark in the early 90s.
Apparently he’s earned hundreds of millions of dollars in licensing revenue on the back of that – as it’s been used in everything from video games, to adverts to TV shows and film.
But there are some really strange ones that you just would never think of.
Paris Hilton took out a trademark on ‘That’s Hot’ - based on the fact that she said it all the time on the reality show that made her famous decades ago.
She actually used that trademark to win a case against card company Hallmark, which featured the phrase on some products.
Taylor Swift has a copyright on ‘This Sick Beat’ - which is a line that popped up in her song ‘Shake it Off’.
Swift is actual a serial trademarker – she has protections on other lyrics like ‘Cause We Never Go Out of Style’ and ‘Party Like its 1989’... though you’d wonder if Prince’s estate would have a counter claim there, as it’s clearly derivative.
And there are also what you might call physical trademarks.
For example Usain Bolt’s ‘lightening bolt’ pose which he used to do when he’d win a race; that’s trademarked.
Mo Farah also trademarked the ‘M’ shape he’d make by putting his arms over his head.
Soccer player Gareth Bale trademarked the heart-shape he’d make with his hands when he scored – though in his case there’s an eleven in the middle, which was his way of making it specific rather than generic.
Though interestingly the professional wrestler Diamond Dallas Page has successfully trademarked a fairly generic hand signal. He owns the ‘diamond cutter’ – which is where you touch your index finger and thumb together, creating a diamond-shaped gap in between.
Despite its broad definition, he sued rapper Jay Z for using it back in 2005, and the case was ultimately settled out of court.
What about failed attempts to copyright something?
Well sticking with the physical ones – Gene Simmons from the band Kiss once tried to trademark making devil horns with your hand. He claimed he was the first to popularise the gesture during a tour in the 1970s, but he got a lot of backlash and abandoned it just two weeks later.
The actor Aflonso Ribero also tried to trademark the Carlton dance – the dance his character in Fresh Prince of Bell Air used to do to ‘It’s Not Unusual’ by Tom Jones.
It is fairly iconic, and he tried to copyright it to strengthen cases he’d taken against a couple of computer game developers - including Epic Games’ Fortnite - which had used the dance with some in-game characters.
But a judge ruled that ‘the combination of these three dance steps is a simple routine that is not registrable as a choreographic work.
Fairly devastating to have your defining moment as an actor shot down like that.
What about failed soundmarks?
Harley Davidson tried to trademark the sound of an engine revving – until other bike and car companies pointed out that their engines sound the same.
Similarly, in 2013 beer brand Budweiser tried to trademark the sound of a can opening – but that was deemed too generic to possibly be owned by any one company.
There have been some failed catchphrases, too.
Donald Trump failed to trademark the phrase ‘You’re Fired’, which he became famous for uttering when he headed up The Apprentice in the US.
But he ultimately failed in his attempt, because it was deemed to be too similar to an existing trademark held by a board game company called Franklin Learning. They have a game called ‘You’re Hired’ - so it was seen as too easily confused.
But to get really confusing – there was also the battle of the Kylies just a few years ago.
In 2014, Kylie Jenner sought a trademark for the name ‘Kylie’, which she was going to use to protect her upcoming makeup line.
But a year letter the other Kylie – Kylie Minogue – filed a suit claiming the copyright would cause confusion.
She pointed out that she’s been going by that name for a long time – in fact she’s owned the website Kylie.com since 1996, before Kylie Jenner was even born.
Kylie Jenner’s trademark was rejected, and after a bit of legal back and forth she trademarked and launched the makeup brand Kylie Cosmetics instead.
A few years later Kylie Minogue launched her own makeup line, just called Kylie.
She’s since said that her decision to take Kylie Jenner to court was "just business".
