The art world was scandalized recently when artist Anish Kapoor announced that he has the exclusive rights to the world’s darkest pigment. Can Kapoor protect this pigment as a color trademark?
Colors as Trademarks
I’ve written before about color trademarks. Here’s one post from 2012, here’s another from 2013. Briefly, a color can be a trademark under U.S. law as long as it:
- Distinguishes the business’s goods.
- Identifies that business of the source of those goods.
- Is not essential to the product’s use or purpose (in other words, the color can’t be functional.)
- Does not affect cost or quality.
- Does not put competitors at a significant non-reputation-related disadvantage.
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Vantablack
The color in question, which is called “Vantablack,” was developed by a company called NanoSystems to be as black as physically possible. The color’s original function was for use on spy satellites. I’ve read that it absorbs “a maximum of 99.965% of radiation in the visible spectrum” and has been used on Stealth fighter jets.
As you can see from the picture above, the pigment is so dark that it makes a folded piece of aluminum foil appear perfectly flat.
NanoSystems has several patents in the U.S. and U.K. for the process of “growing” Vantablack. They have also applied to register the word VANTABLACK as a trademark in the U.S. in connection with a variety of goods and services. Remember, that’s not a color trademark per se, it’s a trademark pertaining to the name Vantablack.
The current controversy arose when it was announced that NanoSystems granted Kapoor the exclusive right to use the color for artistic purposes.
Let’s assume that NanoSystems’ patents provide the company with the exclusive right (for a certain period of time) to produce the color. We can also assume that NanoSystems has the sole right to use the word Vantablack as a brand or trademark in connection with this color.
But can NanoSystems or Kapoor claim trademark rights in the color itself?
Assuming Kapoor actually uses the color on works of art, it’s possible that he can. I should note that I’m looking at this from a U.S. perspective; I’m not an expert on U.K. trademark law when it comes to colors.
I see functionality as the chief issue here. All colors in a work of art serve an aesthetic purpose; to what extent do they also serve a functional purpose? The outcome of a case becomes very difficult to predict when it starts to drift between legal analysis and art criticism.
So, this is a bit of a punt, but in the end, the question of trademark protection for the color known as Vantablack may come down to how it’s actually used in an artistic work. If the peculiar qualities of the color are used in such a way that it can be said to have a function, that may work against its protection as a trademark. If, on the other hand, it’s used just to make a black sky more black, it might be no more functional than any other pigment, and therefore eligible for trademark protection.
As with a lot of legal topics, the interesting questions arise in the “edge cases,” meaning the ones that fall into a gray area. Or should I say a black area?
No, I shouldn’t.
Color our world blackened.
Image By Surrey NanoSystems – Surrey NanoSystems, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=34139562
FAQs
To search existing trade marks, you can use:
- TM Checker to check your idea.
- the Australian Trade Mark Search to look up registered and pending trade marks.
As a light-absorbing chemical, the name "VANTABLACK" is trademarked by Surrey NanoSystems Limited, and is referenced in three patents registered in the United States Patent and Trademark Office. Surrey NanoSystems coats customer parts at its site in the UK; it also supplies a paint for commercial application.
What was the first color to be trademarked? ›
United States. In the United States, the United States Court of Appeals ruled in 1985 that Owens Corning had the right to prevent competitors from using the colour pink in their insulation products, thus making Owens Corning the first company in the United States to trademark a colour.
What does a brand color have to do in order to be considered for trademark? ›
Application Preparation: Applicants during the trademark application process must gather evidence showing the color has a "secondary meaning" — that consumers recognize the color as representing their brand — and demonstrate the color's non-functionality, ensuring it doesn't provide a competitive advantage in use, ...
How much does it cost to trademark a color? ›
The filing fees for an application filed through the Trademark Electronic Application System (TEAS) are as follows: $250 per class of goods or services for a TEAS Plus application that meets the requirements of 37 C.F.R. §2.22; or. $350 per class of goods or services for a TEAS Standard application.
How long does a trademark last? ›
How Often Do Trademarks Need To Be Renewed? Trademarks need to be renewed every 10 years. Federally registered trademarks last for ten years, with potentially infinite additional 10-year renewal terms as long as you continue to use them to identify your products or services.
Why is Vantablack paint illegal? ›
There's a paint, a “material,” that an artist patented, and no one else is allowed to use it. Anish Kapoor bought the exclusive rights to Vantablack, the blackest black available to artists. (Feel free to insert a “Spinal Tap” joke here, if you are of a certain age.)
Who owns the color black? ›
So Another Artist Made His Own Superblack—and Now It's Even Blacker. Anyone is allowed to use Stuart Semple's new Black 3.0—except Kapoor.
What is the darkest black name? ›
Vantablack, the pigment considered the blackest shade of black on the planet, is currently the source of commotion among the art world. Sir Anish Kapoor, the London-based sculptor responsible for the ArcelorMittal Orbit sculpture for the 2012 Olympics, now owns exclusive rights to the color.
Does anyone own a color? ›
Supreme Court Holds Color Can Be Trademarked
The Lanham Act does not mention color specifically, and other courts of appeal came to different conclusions regarding the use of color alone as a trademark. The Supreme Court put the matter to rest in 1995 in Qualitex Co. v. Jacobson Products Co.
Under Section 2(1) of the Trademarks Act of 1999, a colour or combination of colours can be trademarked in India if it meets the following requirements: Capable of being graphically represented. Unique and distinctive in nature and is capable of distinguishing the goods or services of one trader from those of another.
How to own a color? ›
To successfully secure such a trademark, a firm must prove that a single color: Achieves “secondary meaning” (distinguishes a product from competitors and identifies the company as the definitive source of the product)
How to check if a color is trademarked? ›
Using a trademarked colour as part of your business' identity may result in an infringement on another business' IP right. To check whether a particular colour is already trademarked simply requires a quick search on google or IP Australia's Trade Mark Register.
Do I need a logo for a trademark? ›
It depends. Higher value tends to lie in name recognition rather than familiarity of a logo. Since logos change more often than names, it usually makes more sense to register a standard character mark to protect the business moniker itself.
Should I claim color in my trademark application? ›
Color can serve a key purpose to differentiate your product from the goods or services of others. If you strongly feel that your mark's colors are indispensable to your brand, and you would like to restrict others from the use of similar colors, including a color claim in your trademark application is recommended.
Which colors are trademarked? ›
Some popular examples of trademark colors include:
- Green-gold, Qualitex.
- Tiffany Blue.
- Target Red.
- Cadbury Purple.
- Barbie Pink.
- Home Depot Orange.
- T-Mobile Magenta.
- Wiffle-Ball Yellow.
You can search all applied-for and registered trademarks free of charge by using the U.S. Patent and Trademark Office (USPTO)'s Trademark Electronic Search System (TESS).
Are certain colors copyrighted? ›
Colors can be trademarked or patented, but not copyrighted. There are some colors that are patented. In this case it means that the method by which the physical color is produced is patented as a new technology. The other thing that can be trademarked is the name of a color.
