Commercialisation of Colour

 Vanta Black

Vanta Black

It’s easy to dismiss colour as something too commonplace too commoditise, but a certain shade (whether by itself or in combination with others) can carry as much value in the commercial market as any other branding tool or product.

But a cornerstone of commercial value is ownership, and how can anyone ‘own’ a colour?

Over the last few decades, colour has progressively been recognised as falling under intellectual property protection laws around the world. However, in order to prevent any individual holding a monopoly over such a ubiquitous and finite resource – hardly conducive to a competitive market – ‘ownership’ and associated rights have generally been exclusively linked to a specific use of a colour and/or the process involved in creating it.

The first and most obvious method of the commercialisation of colour is the law of copyright. Copyright laws have long protected the use of colour in specific combinations and arrangements –  in other words, the use of colour in art. Copyright law gives artists exclusive rights to reproduce, communicate and publish their colourful creations, as well as an avenue for enforcing these rights. This combination of exclusive rights and enforcement options – as with all intellectual property law – allows artists to commoditise and exploit their individual uses of colour by selling and lending their rights for valuable return.

Copyright undoubtedly allows for the commercialisation of colour, but it only does so in a restricted way. The colours that artists use are only protected in a particular combination and arrangement, and only where that combination and arrangement is deemed sufficiently original. The individual use of these shades outside of the context of the specific artwork is not protected – that is, the colours themselves are not ‘owned’ by the artist.

To exercise such ‘ownership’ over a single colour, something other than copyright protection is needed.

Brands, by their very nature, trade on a constructed association between their brand name and the attributes that they believe will increase the desirability of their product or service. A colour can be an effective means of representing and evoking this association in the consumer’s mind, and therefore to capitalise on the use of that colour commercially…but only where a company can ensure their exclusive use of the colour and the associations they construct around it. This is where trade mark law comes into play – a second intellectual property area that allows for the commercialisation of a specific colour. Traditionally, various territories have been reluctant to allow colour trade marks for fear of anti-competitive consequences in the market place. However, since the 1990s, such protection has increasingly been granted with respect to the use of specific colours in specific circumstances. For example, Tiffany and Co. and Louboutin hold trade marks in Australia (and many other territories) with respect to the use of blue (RGB profile R117 G210 B204) and red (Pantone No. 18.1663TP) respectively. These trade marks are restricted to use of these colours in particular contexts: Louboutin only control the use of Patone No. 18.1663TP with respect to ladies high-heeled shoes, while Tiffany and Co.’s exclusive right to use RGB profile R117 G210 B204 only exists with respect to certain types of jewellery and jewellery packaging.

Colour is not just commercialised through the licensing and sale of art (copyright law) and the use of colour as a brand commodity (trade mark law). A more fundamental form of colour ‘ownership’ exists, granting even more extensive rights and even more opportunities to monetise colour: patent ownership. The process used to create a unique pigment may in certain circumstances be patented, granting the patent holder exclusive control over the resultant colour-product. Unlike copyright protection (which is extremely narrow with respect to colour) and trade mark protection (which is restricted by the use of a colour) patent control often equates to effective absolute ownership. The most famous example of such control is International Klein Blue, an intense ultramarine pigment captured by use of a particular resin and compatible solvents and developed by Yves Klein (patented in 1960).

More recently, UK-based Surrey NanoSystems Limited developed and patented the blackest substance ever created by humans, dubbed ‘Vantablack’, which absorbs up to 99.965% of visible light. The substance is so black that the human eye is virtually unable to perceive shadows on the object, which are relied on by our brains to detect shape and depth of field. Controversially, NanoSystems have capitalised on this patent by granting an exclusive licence to famed artist Anish Kapoor to use Vantablack in his artwork and to Lynx to use it in relation to their deodorant product line.

The case is far from black and white as to whether commercialisation and effective monopoly of a colour is competitive or even culturally and artistically desirable. What is clear, however, is that there can be much more value to pigments than first meets the eye – a colourful concept indeed.