Stuart Semple is looking to “liberate” Tiffany & Co.’s signature color. Inspired by the iconic brand’s color, Semple created a “super flat matte high-grade shade” acrylic paint that imitates the company’s famous robin’s-egg blue. He has since sold out 150 ml tubes of it for $28 on his e-commerce website. The artist is hoping to make this color widely available to artists.
The purpose of this project is to make this “once unattainable color” available to all artists willing to use it in their artistic work. Semple has created this project called Tiffany Blue, which he hopes will allow artists to use the iconic color in their creations. According to him, the color created by Charles Tiffany and John Young in 1837, is already trademarked, and that means that anyone wanting to use it must obtain a license. While several corporations have trademarked colors like Coca-Cola’s Red, what makes Tiffany Blue unique is that its trademark goes back to 1998 and that Tiffany & Co. has even hidden the Pantone code for the color.
Semple’s Tiffany-specific venture is a thought-provoking look at how brands compete for the privilege of having a specific color mark. It also provides an opportunity to explore how these rights are granted to companies.
According to Semple, Tiffany & Co. holds the trademark for Tiffany Blue since 1998. However, it is not clear how the company obtained its rights since it only holds the trademark for the color across all uses since 1998. Dana Dickson, the former U.S. Patent and Trademark Office (“USPTO”) trademark examiner confirmed recently that in the States it is possible to trademark a color if it goes back to the single source for the products and/or services offered.
Basically, an individual color can be protected as a mark if its use is non-functional. This is because consumers would still associate it with a brand, meaning the source of the color instead of relating it with the products and/or services offered.
Having acquired distinctiveness can be difficult to establish, especially when it comes to certain colors since a color needs time to be perceived as a source indicator. For example, Christian Louboutin has valuable trademark rights for the use of a contrasting-colored shoe sole. Cartier has trademark rights for different shades of red used for its products. Hermes too has TM rights for its famous orange etc. This applies to all companies claiming rights in specific colors and packaging.
Even if a brand can secure rights and registrations for certain colors, that doesn’t mean that they can’t use those colors on any object or prevent anyone else from using them in any way. According to the USPTO, the registration of a color mark is only for the purpose of identifying a certain object or service.
For its various trademarks, Tiffany & Co. shows how it is describing and using its marks in the US. For instance, it has registrations for word marks such as “Tiffany Blue”, which is used in connection with its jewelry and accessories, and “Tiffany Blue Box”, which is also used on jewelry.
As for its other color-centric marks, Tiffany has a multi-class registration for “a shade of blue often referred to as Robin’s Egg Blue which is used on boxes” in connection with the sale of jewelry, fragrance products, certain leather goods, tableware, and stationery, among other things, as well as related retail store services.
Furthermore, Tiffany has registrations for the use of the company’s blue hue on jewelry pouches and shopping bags in connection with the sale of various kinds of goods.
While Tiffany & Co. may have registrations for an array of uses of its blue, these are limited to the uses that the company actually makes and consistently maintains. The thing is that the trademark rights existed in the first place because of the genuine use of this specific blue shade and not by virtue of being issued registrations by the USPTO. Driven by this logical reasoning, Tiffany will mostly not stand in the way of artists trying to use their signature blue color or any similar shade to it in their work. This is valid when such work does not induce confusion for Tiffany’s consumers or their affiliation to the brand and the company.
Still, it is worth noting that Tiffany does not seem to abuse its rights in its blue. For instance, it has initiated lawsuits against various individuals and companies for trademark infringement. Websites such as besttiffanyco.com and Costco. were sued in 2013 for selling non-Tiffany & Co. rings with “Tiffany’s signature” causing consumers confusion.
Semple is right when claiming that it is illegal for anyone to use Tiffany blue in any category, and that trademark holders can protect their rights in every color, but this applies to certain products and services that are narrow in scope.
It’s not uncommon for Semple to make headlines since he’s always in an attempt to take famous trademarked colors and create from them paintings to be sold. He recently made the most expensive “blackest black” paint and ink possible, as revenge against Kapoor for acquiring the exclusive rights to use the Vantablack coating. Kapoor withheld other artists from using this color since 2014, Semple, included. Semple followed this up back then and created the “pinkest pink,” and made sure to ban Kapoor from using it.
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