Photo by Tommao Wang (Unsplash)

Ariel Goldberg is a third-year undergraduate student at York University.

For most, Tiffany’s robin’s-egg blue box immediately represents luxury jewelry. However, British artist Stuart Semple considers Tiffany Blue as being held captive through trademark law. To #freeTiffany, Semple created 150 ml tubes of matte acrylic paint named Tiff which replicates Tiffany & Co’s signature hue.

Semple has been “liberating colours since 2016”, with previous paints replicating trademarked colours including International Klein Blue, T-Mobile Magenta, and Blackest Black. His aim is to increase the possibilities within art by making accessible what he claims are unattainable colours. Semple has pushed his commentary further by preventing individuals who hold registered colour trademarks from purchasing specific paints on his e-commerce website. Now, Semple’s most recent paint, Tiff, targets Tiffany & Co by sharing the brand’s iconic blue with all artists.

Tiffany Blue was created in 1873 by Charles Tiffany and John Young and has been registered as a colour trademark in the U.S since 1998. Traditionally, colours were outside the scope of trademark protection. The Lanham Act—the federal trademark statute in the U.S—does not include colour in the statutory definition of trademarks. In the 1995 Qualitex Co. v Jacobson Prods. Co decision, the U.S Supreme Court held that a colour could be registered as a trademark but required that the colour’s use be non-functional and that it has a “secondary meaning” or “acquired distinctiveness”. In other words, consumers must associate the colour with a single source.

While Tiff paint has sparked conversation about monopolizing colours, Semple’s strong language on his e-commerce website and social media posts overstates the Tiffany & Co’s trademark rights. Semple wrote in an Instagram caption that Tiffany Blue is “trademarked in every category” and that “it is ILLEGAL for you to paint with it.” However, colour trademarks are not synonymous with ownership of the colour. Trademarks are generally registered in connection to specific goods and services, which are divided by industry under the global Nice Classification system. Tiffany & Co has a multi-class registration for Tiffany Blue, but these are all narrowly defined. For example, Tiffany Blue is registered for its use on “jewelry pouches with drawstrings” in Class 14. The trademark covers uses of the colour that would reasonably confuse the public to believe Tiffany & Co was the source.

Essentially, trademarks operate as a source indicator. Colour trademarks protect brands if the use of the colour in connection to specific services or goods would confuse customers. Within the fashion industry, Christian Louboutin holds trademark rights for the use of Pantone 18-1663TP on shoe soles and Hermès maintains trademark rights for the use of a specific orange on packaging. Again, trademark protection is granted over the use of the colour in relation to specifically defined goods and services. It is not protection for the use of the colour on anything and everything.

In addition, colour trademarks are not effortlessly granted; it is difficult to gain monopoly over a colour. It can take time for colours to develop the required secondary meaning. In the case of Tiffany Blue, The New York Sun reported the iconic nature of Tiffany & Co’s blue boxes in 1906, which is a significant time frame to be using the colour in relation to packaging and jewelry. Essentially, the colour’s use was so well known it was functioning as a source indicator before protection was granted. Even if secondary meaning is established, the colour cannot be functional which means that the colour cannot be essential to or a characteristic of the good or service. The functionality doctrine protects competitors against a disadvantage. Ultimately, there are safeguards to granting a colour trademark which prevents widespread and overly broad monopoly of colours. Further, rights are limited to the consistent use of the colour.

Tiffany has yet to respond to Semple’s paint. Regardless, Semple plans to continue “liberating” Tiffany Blue. He explained, “I see the art materials as more of a cultural critique, a piece of critical art [rather] than a business.” While Semple’s cultural critique exaggerates the protection granted through colour trademarks, Semple has started a conversation. He has also shown the importance in recognizing the limitations and safeguards in colour trademarks.