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Color in Trademark and Tradedress Disputes

Marc Green

Seminar Available on this topic.
Click For A pdf "Human Factors In Intellectual Property Law Disputes", presented to the Toronto Intellectual Property Group, April 2007.

Knowledge of color science can be helpful in trademark and tradedress disputes. Issues of confusion, functionality, distinctiveness, depletion, etc. all have their roots in basic color science and human color perception. Moreover, arguments based on color science may eliminate the need for surveys and other costly research. For some background in basic color, see the
Color & Design pages.

Why Color?

Companies may bring actions based on many visual, auditory and cognitive aspects of a tradedress or a trademark. Cases often involve color (sometimes in association with shape) since marketers have long realized that it can be a powerful and effective tool for creating brand identification.

In many intellectual property disputes, one side will raise the issue of confusion. The plaintiff will claim that consumers may fail to distinguish the junior from the senior tradedress or trademark. The defendant will counter that confusion is unlikely, although human ability to distinguish colors is very limited, especially when memory is involved. The Court may then expect data from an empirical study demonstrating whether consumers will actually be confused.

Another defense strategy is to show that the tradedress or trademark has functional significance and offers competitive advantage. U. S. courts have two different definitions for the term functional. In the judgment of the Traffix Devices, Inc. v. Marketing Displays, Inc. case, the U. S. court of Appeals distinguished between the traditional definition that says that a feature cannot serve as a trademark "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article" and the utilitarian definition, a functional feature is one "the exclusive use of which would put competitors at a significant non-reputation-related disadvantage."

The defense can attempt to show that the tradedress or trademark has functional attributes. The functionality defense has several advantages. First, it does not usually require a survey or other empirical study, which is an expensive procedure. Although some techniques are more robust than others, interpretation of survey studies can be disputed, For example, survey questionnaires are difficult to construct because subtle wording changes can have a profound influence on response. Second, functionality arguments are generally based on fundamental human abilities that have been extensively and scientifically studied and that often do not differ significantly across population, ethnic and language groups. It seems likely, for example, that all humans with normal color vision see colors similarly. There is no need to perform studies in different localities and sample likely consumers.

Regardless of whether the dispute involves confusion, functionality or other issues, an understanding of color science can prove valuable. Below, I briefly outline some color basics.

Basic Color

Color perception is a very complex topic, mainly because it depends on a myriad of variables. Most people think that the wavelength determines color. In fact, wavelength can be a very minor factor in color perception. Variables such as background, familiarity, lighting, previous viewing, age, etc. all affect color perception greatly. The starting point, however, is the surprisingly complex question: what is color?

What Is Color?

This is not a simple question to answer for two reasons. First, color is not a property of light; it is an experience that the brain creates in response to light, and it is hard to define experience in words - color simply is. Second, people use the term "color" to mean different things at different times.

The simplest way to think about color is in terms of its three basic components:
  • Hue: quality of the experience (red, green, blue, etc.);
  • Brightness: quantity of light apparently coming from an object (white vs. black);
  • Saturation: purity of the color experience (red vs. pink.).
In the technical meaning, two lights are said to be different in color if they can be distinguished by any of these three dimensions. The technical meaning differs significantly from everyday usage, where the term color is often used to mean only hue (e .g. green). At other times, nonexperts may use "color" as indicating a combination of hue and saturation (e g., pink). Even among vision scientists, however, it is common practice to mean hue and saturation when speaking of color and to treat brightness as a separate property. However, brightness can be a factor in color. For example, "navy" is a dark blue. As a result, if a trademark merely specifies a color term such as "green," it is actually vague and ill-defined as to the exact meaning. There are a wide range of hues, saturations and brightnesses that a viewer might label "green."

Likewise, it is not easy to say how many colors exist, since the eye discerns different numbers under different conditions and different definitions of color. Here are some of the more significant estimates:

  • 1,000,000: the number of colors (combinations of hue, saturation and brightness) that the eye can discriminate under optimal laboratory conditions. This is only an estimate, since it would be impossible to actually test all possible combinations. A few even believe the number to be as high as 7,000,000.
  • 150: the number of hues that the eye can discriminate in the spectrum. Some hues, like brown and purple are not in the spectrum, so the total number of perceptible hues is somewhat larger.
  • 11: the number of basic color categories. People in all cultures have the tendency to group colors into the same basic categories:
    • Primary: red, green, blue, yellow;
      Secondary: brown, orange, purple pink;
      Achromatic terms: black, white, gray.
    Other studies suggest that people add a few color names to this list ("beige" is a common color term in Western cultures) or use secondary terms such as "aqua" or "magenta." However, the key point is that a very large number of perceptually distinct colors that share the same color name.

    Confusion

    When will people confuse colors?

    It depends. There are two ways to test color confusion. One is called simultaneous discrimination, where both colors are present. The respondent says whether the colors are the same or different. The second method is "color memory." The viewer sees a sample, which is then removed. At some later time, the viewer is asked to say whether it was the same or different as color previously seen. A shopper in a store is more likely using color memory, since s/he typically does not see the two products side-by-side.

    Color memory is vastly inferior to color discrimination. Many color pairs that would obviously differ if held side-by-side are confused in memory. Although there are 150 discriminable spectral hues, people could distinguish no more than 10-12 in memory. The number could easily be far fewer if the colors are not judiciously chosen. For example, people tend to distinguish colors better if they fall into different base categories (e .g., red vs. yellow) and if they belong to the same category. If they are different shades of the same category, however, people seldom can distinguish them in memory. Moreover, there are definite biases in color memory. People tend to remember colors as being brighter, more saturated and closer to the pure color; for example, they remember yellow with a tint of green as simply being yellow. There are also a large number of issues related to the general unreliability of memory. In brief, memory is not simply an internal re-viewing of what was originally seen. Rather, it is a reconstruction that can be unconsciously affected by many factors such as expectation and other sources of information.

    Some factors also further increase the likelihood of color confusion:
    • Small size;
    • Low light level;
    • Low attention;
    • Brief viewing.
    One consequence of these factors is that survey respondents who have lots of time and attention to carefully inspect colors will greatly underestimate confusion shown by many real consumers in a shopping situation (Green, 2001). Of course, color confusion will vary with the amount of attention that the consumer must pay to the object. A consumer who simply grabs a "familiar" can of cat food off the supermarket shelf will be more easily confused than a consumer who must attend to the product during purchase.

    Lastly, the concept of distinctiveness is related to confusion. In perceptual terms, a distinctive color is one which is highly different from all alternatives. For example, if one car model were red and all other cars were blue, then the red car would be distinctive. On the other hand, if other cars were yellow, orange, magenta and pink, then a red car would not be as distinctive. The key point is that distinctiveness is not a property of a single product but rather of the product and all of the possible alternatives.

    Color Combinations

    In many cases, tradedress may involve, not one, but a particular combination of colors. For example, a package may have the name of the product in one color while the background is another. The particular combination chosen has major implications for both confusion and functionality (see below). Of particular note is that people are not very good at localizing color. The picture shows two "packages" with the same colors, but with different color distribution. In real shopping situations, the two packages would be highly confusable. People don't pay close attention and make selection based on general color rather than on labeling, precise colors or color location.

    People who use color as a selection cue don't readily notice the amount or location of the color on a product. This picture shows two cans of cat food. The can on the right is salmon pate, which my cats love. The can on the left is chicken chunks, which my cats hate. My cupboard is full of chicken chunk cat food because I have so frequently grabbed the wrong can. The reason for the error is obvious - the only cue is the color distribution, which is not obvious from a quick peripheral view. Moreover, the orange of both cans forms a mental color association with salmon. Chicken is not usually orange.

    Color & Shape

    Trademarks often specify shape as well as color. When people make casual selections, however, color is likely to dominate shape. The main reason is the color is simply easier to identify. To see shape, the eye must focus the fovea, the area of maximum visual resolution, on the trademark. Form vision is also relatively slow. On the other hand, color is "low resolution," it can be seen as a simple blob. Color's advantage grows under certain conditions:

    Small size: The smaller the object, the less visible the shape details. Color recognition declines somewhat as well, but not nearly as much.

    Low Attention: If the viewer is not paying close attention and/or is using peripheral vision, color again gains great advantage. It is well know that people performing a routine task will "cue generalize," they shift their selection criterion to easier and more recognizable cues. For example, people quit looking at shape and reading labels if there is a color that can be used for selection.

    The "Stroop Test" is a good example of how color dominates shape. The test works by taking a color term, such as "Blue," and showing it printed in either blue or red ink:

    Blue     Blue

    When asked to read the word, people take longer to read the word "Blue" in red ink than in blue ink. Color perception is fast and automatic.

    Functionality & Competitive Advantage

    Color is far more than a decorative device used in design. Humans have evolved color vision as a functional aid for interacting with the environment. We rely on it as a quick and robust method for segregating objects from backgrounds, for identifying objects and for directing attention.

    The choice of color in visual communication is not arbitrary, but is rather constrained by innate human visual and cognitive mechanisms. For any particular communication goal, usually a limited number of colors and/or color combinations are effective. Restricting the available colors can inhibit competition and can quickly cause color depletion.

    Color can be functional in four ways, visibility, conspicuity, meaningfulness and space and size perception:

    1. Visibility refers to the ease of form and shape detection and identification. Certain color combinations enable better detection, discrimination and recognition of objects and improved legibility of text. They enable viewers to perceive objects and to read letters and numbers that are smaller in size, seen at greater distance, located in the visual periphery (off the direct line of sight) and presented for a briefer time. Color is especially important for creating readable text and signs.

    2. Conspicuity refers to the ability of an object to attract attention. The focusing of attention is necessary for perception, so objects can be highly visible but still missed because they are not also conspicuous enough to draw attention (Green, 2002). Conspicuity is a function of several factors, including size, contrast and color. Some colors attract attention better than others. Finding a way to break through the clutter of the urban landscape and to attract consumer attention is a major concern of most businesses.

    3. Meaningfulness refers to the ability of some colors to automatically create mental associations that convey specific meanings. The objects are then easier to identify and to remember. Many colors convey a special meaning. While there is some variation across cultures and drifts over time as to these meanings, people in Western countries are likely to form specific mental associations when seeing colors. Some common associations, such as blue with power are less stable because they rely on symbolic connection. Power is not a visually blue object. On the other hand, the association will likely be stronger and more stable when there is an obvious visual connection between the color and association. For example, blue brings water and coolness to mind because water is blue and cool. These associations are regularly used in marketing and advertising to promote an image that relates to the product in some beneficial way to increase sales. Green is frequently used in packaging of organic, healthy and natural products because of the association with trees, grass and nature. White is used to signal purity and cleanliness. The association of a color with a particular product class is not arbitrary.

    4. Space & Size Perception. Among color's other properties, it can affect perception of size and 3D space. Mountains off in the distance usually appear blue-violet and indistinct. This effect, "aerial perspective," is a secondary consequence of short wavelength light's greater refractive index - it bends more. When white sunlight hits the atmosphere, the short wavelengths refract more, scattering into a bluey haze - hence a blue sky. In general, the farther light travels from an object to the eye, the more blue haze you see through and the less sharp the object appears.

    The eye automatically interprets blue/violetness and loss of sharpness as signs of distance. Conversely "warm" colors such as red, yellow and orange appear closer. A clever designer can use these color properties to add a 3D feeling to a flat display and enhance separation of foreground and background. This is important because people are more likely to notice objects interpreted as foreground rather than background. Moreover, perceived distance also affects apparent size. The size of a candy bar could be enhanced, for example, by using specific colors.

    Conclusion

    I have provided a brief outline of some basic color issues in trademark and tradedress. In many cases, "color psychophysics," the scientific discipline that studies color vision, can offer insights that are scientifically-based and are unavailable from casual introspection, surveys or other means of analysis.

    References

    Green, M. The Science of Conspicuity, Brand Packaging, pp. 38-42, Nov/Dec 2001.

    Green, M. Inattentional Blindness, Occupational Health & Safety Canada, pp. 23-29, Jan/Feb 2002.

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