Law and the Sensory Scan

How to Cite

Elliott, C. (2005). Colour™: Law and the Sensory Scan. M/C Journal, 8(4).
Vol. 8 No. 4 (2005): 'scan'
Published 2005-08-01

The brand, by definition, promises the experience of the scan. A quick glance at the exterior (i.e. brand name/image) presumably conveys a host of brand attributes to the shopper. This scanning experience is particularly intriguing when it comes to colour trademarks, for it presumes that the sight of a colour brings individuals to the same set of associations—that purple connotes Cadbury chocolate, for instance, while pink signifies Owens Corning Fiberglass insulation and orange suggests Orange Personal Communications.

But there is a complexity to both colour trademarks and this scanning ‘experience’ that demands a closer look; this paper probes the logic of the ‘colour scan’, as well as its significance. Sketching out 1) how the legal ownership of colour alone or colour per se corresponds to and idealises practices of scanning, and 2) how colour trademarks are positioned (in legal and marketing literature) as a means of dealing with information overload, the paper then addresses how the granting of colour marks by the trademark office/courts creates various difficulties—both for competing brands and for colour communication itself. Most problematic about the ‘brand’ colour scan is that it runs counter to the very nature of colour, which bursts free of constraints with its infinite potential to signify.

I Granting legal ownership to colour corresponds to and idealises practices of scanning

One great thing about colour, argues Martin Lindstrom in his newly published marketing book Brand Sense (2005) is that it contributes to the ‘smashability’ of a brand. Successful brands can be ‘smashed’ like a glass bottle of Coca-Cola and consumers would still recognise the brand from its pieces. Logically, then, marketers should place a ‘signature’ colour at the center of all branding efforts. Trademarking this colour is even better, as it secures the hue as a distinct part of a particular brand’s sensory experience (119). More to the point, it prevents competitors from using the trademarked colour—or any confusingly similar shade—to promote their products.

Of course, marketers have long recognised this fact, and the history of the U.S. is dappled with attempts to ‘own’ a colour. Examples range from Leschen & Sons Rope Company’s claim to ‘blue’ woven into wire rope in 1906 and Campbell Soup’s quest to monopolise red and white for soup labels in 1949, to Life Savers’ desire for certain candy wrapper colours in 1950 and Kraft’s application for royal blue on silver solely for its Klondike bars in 1986. In 1990, NutraSweet Co. even sought rights to the spectrum of blue for its sweetener, arguing that “the accepted market understanding is that pastel blue means ‘Equal,’ pink means ‘Sweet ‘N Low’ and yellow means ‘Sugar Twin’” (Kearns, 355ff). All of these requests demonstrate that colour fits the demands of the glance—it is scanworthy—an understanding the U.S. Supreme Court ultimately supported in 1995 in Qualitex Co. v. Jacobson Products Co. when it ruled that colour per se could in fact constitute a legal trademark.

Some analysts see a “trademark disaster” looming in colour ownership (Overcamp); its trademarking certainly provides a vivid example of what Carol Rose deems the “propertisation” of seemingly “un-ownable resources” (Rose, 94). But disaster and propertisation aside, colour trademarks suggest the idealised object d’scan; purple, for instance, provides an instant sensory strike, but if the logic of colour trademarks works, purple also connotes a host of very specific meanings. Within the world of confectionaries in the UK, purple means not simply chocolate but chocolate by Cadbury Limited. This is an important point, since the function of a trademark is not merely to distinguish products from one another but also to indicate the source or origin of a product. As such, purple simultaneously embodies both definitions of scan—both the “quick glance” and the “measured study”—because the exteriority of purple (so we are to understand) immediately gives way to the interiority of the brand. Purple’s exteriority singularly connotes the “taste, smoothness and snap characteristic of Cadbury chocolate” in the confectionary sector (Cadbury).

Perhaps this is not too much to ask of colour. After all, the Latin colorem “is related to celare, to hide or conceal; in Middle English ‘to colour’ is to embellish or adorn” as well as “to disguise” (Batchelor 52). Perhaps purple really does conceal the ‘source’ of Cadbury Limited, the fact that a certain product in the UK confectionary sector originates with Cadbury. But perhaps (as will be discussed) it conceals something more…

II Colour trademarks are positioned as means of dealing with information overload

Practices of scanning, suggest the editors of this issue, stem from “the increased number of things to consider and the reduced amount of time to consider them”. Despite the fact that they are not designed to do so1, colour trademarks shine as a golden solution to this problem of information overload, as well as to a variety of other marketing challenges. Observing colour takes no time, it makes consideration easy and it transcends borders, cultures, and language barriers. Colour naturally draws attention. So, if we’re dealing with a saturated marketplace characterised by information overload, the push for colour trademarks actually works to shift the balance of both the overload and the saturation. Today’s aim is for colour saturation, with brighter, bolder, weirder, and signature hues colonising untapped arenas—as per pink Parkay margarine and blue Heinz fries (which failed), and “Funky Purple” and “Blastin’ Green” Heinz EZ Squirt ketchup (which triumphed). Think, too, of crayoned cell phones, fruit-flavored iMacs, or even Air Canada’s Zip airlines, which coloured the runways in September 2002 with its bold palette of blue, fuchsia, orange and green planes.

This push to create a distinct ‘signature’ colour is actually a type of colour overload, with unusual hues being stuffed into ordinary arenas. Ironically, colour is equally used to promise a respite for consumers overwhelmed by a complex environment. Orange Personal Communications, the UK’s largest telecommunications provider, reassures customers with the tagline “The Future’s Bright, The Future’s Orange”—a promise that the company visually demonstrates with its legally trademarked orange (Pantone No. 151) used to market its telephones and all things related to its telecommunication services.

III Significance of the colour™ scan

The obvious problem with the colour™ scan is that its immediate sensory strike may not take consumers to the ‘deeper’ associations of the brand. Trademarks, observes Celia Lury, are “a way of fixing things” (98) but it is difficult to believe that blue or orange or purple (etc.) can be tacked down so neatly. Does the ordinary consumer really associate turquoise with H.J. Heinz in the category of canned beans? And do consumers make these links even though our world is saturated with colourful experiences and products? Businesses argue that they do and frequently roll out survey data, advertising expenditures, and the paid services of visual ‘experts’ to demonstrate and prove its particular colour ‘rights’ to the trademark office and/or court. In this way, corporate players, supported by the courts, authorise specific colour meanings, and discount others.

But perhaps colour isn’t smashable. Even corporately ‘authorised’ colour readings (i.e. those that purportedly ‘scan’ in sync with the brand) encounter difficulties because the semiotics of colour continually evades the quest to pin it down. Regardless of its legal status, a trademark does not actually sequester colour or spontaneously combust a precise brand meaning within individuals. Orange Personal Communications may own the rights to Pantone No. 151 (orange) in the UK, but this has not stopped easyMobile from using a very similar shade of orange to promote its nascent cell phone services. Although Orange began court action against easyMobile over the colour orange on February 18, 2005, the legal ‘solution’ to this infringement is unclear. The problem is that easyMobile is not merely an upstart company, but a subsidiary of easyGroup, well known for its signature orange shellacking its entire discount brand—a brand spanning jet planes, car rentals, internet cafes, movie theatres, cruise lines, male toiletries, and pizza delivery. Thus, the company with the rights to orange for its telecommunications has challenged a company that places orange at the very centre of its brand. What is to be done? Should easyGroup be blocked from using its signature colour for one branch of its operations? If so, wouldn’t this be counter to the very logic of branding? Conversely, what about Orange Communications’ “rights to orange” within the realm of mobile phone services? Aren’t they being infringed? The solution is unclear. And the waters are no less muddied by the fact that the ‘trademarked’ orange in question is Pantone No. 151, while easyGroup uses Pantone No. 023. The numbers, objectively, are different—but what do consumers see? What is the meaning of orange for them? These Pantone numbers, just like advertising expenditures, trademark certifications, and ‘expert’ opinions, remain utterly silent on the question of colour meaning and personal interpretation.

And so, we are left with a troubled notion of the scanning of trademarked colours. It’s a practice that promises—but cannot guarantee—a particular meaning and reading within a certain context, one that is perfectly suited to the ‘instant look’ yet might contain a significance far different than the one authored and authorised by a business and the trademark office. While colour is scanworthy, it has multiple meanings and multiple readings; it is subject to recoding and reworking and distortion.

That is what makes it colourful.


  1. Trademarks recognise distinctiveness within a particular class of goods or services (i.e. Cadbury Ltd. successfully registered purple in the UK for use in the category of chocolate and chocolate confectionary, and a similar mark has been accepted for registration in New Zealand. This does not, of course, give Cadbury Ltd. the exclusive right to purple in unrelated categories, such as sporting goods. Interestingly, Cadbury’s application to register eight different shades of ‘Cadbury purple’ in Australia was unsuccessful.)
  2. The author gratefully acknowledges the thoughtful and thorough commentary provided by an anonymous referee. Thank you. Many excellent points were raised which, due to space constraints, were woefully under-addressed in this piece.

Author Biography

Charlene Elliott