IP Protection for Color

Trademarks, Patents, Copyright, or something else – can you protect color with intellectual property? Under Trademark law, color is inherently indistinct, but with sufficient acquired meaning it is possible – think about pink insulation.  But viewing color can be a very individualized experience. For example, two people viewing the same object under the same lighting conditions may have different perceptions of that object's color.  Additionally, even a single viewer may have difficulty determining the color of an object when the object is viewed under two different lighting conditions. As such, individuals or organizations seeking protection of a specific color may run into unforeseen difficulties.

As noted above, one way that a color may be considered distinctive for the purposes of Trademark protection is when it can be demonstrated that the color is so closely associated with a product or brand that the product or brand can be recognized by the color. In building a case for trademark protection, an applicant may support their arguments by providing evidence, such as public surveys, demonstrating association of the color with the applicant's product or brand. However, without sufficient supportive evidence, acquiring protection in this way may be difficult.

Another way to try and protect color through patent protection is to target novel mechanisms that enable the color to be reproduced, for example a new chemical compound that generates the color. Take, for example, the YlmMn Blue pigment discovered by researchers at Oregon State University. The pigment has a crystalline structure that absorbs most wavelengths of light while reflecting specific wavelengths that produce a vivid shade of blue previously unseen in other pigments. By filing a patent application (U.S. Patent 8282728) targeted toward the unique underlying crystalline structure of the pigment, the researchers may be able to effectively achieve protection with regard to commercial application of the specific blue color of the compound.

Further still, others have adopted different approaches to protecting color. Rather than developing nanostructures that reflect specific wavelengths of light, some have opted to produce materials that reduce the reflection of light almost completely. For example, Surrey NanoSystems Limited has filed a patent application for an ultra-low-reflectivity hydrophobic coating (WO 2017033031) known by the trademark Vantablack.  The material has a nanostructure that absorbs up to 99.965% of incident light in the visual portion of the spectrum. Surrey NanoSystems Limited markets the material as the blackest human-made substance in the world, and has since licensed the material for artistic use.  Although the material was originally developed for scientific instrumentation, patenting the process by which the material is produced may effectively provide protection with regard to the visual properties of the material, such as the perceived color, for a variety of different applications.

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