Growing up, I spent every summer in a Turkish seaside town with my dad’s extended family, enjoying the sun and admiring the ways Turkish traders, cafés, and billboards played fast and loose with intellectual property. You could (and still can) buy T-shirts and bags with labels like “Prado,” “Gukki,” or “Tommy Hilfinger.” You can go to bars and restaurants named after terrible films (Bad Boys II) or British chain bars (The Wetherspoons Cafe), and you can shop for luxury souvenirs at bargain prices (“Genuine Fake Rolexes”).
This isn’t just the Turkish seaside shopping scene, knock-offs abound from the Bodrum market to New York City’s Canal Street, and the greatest shopping destination of all: the internet. But the internet doesn’t just make buying fake goods easier, it makes them easier to produce, too. Combine that with the rise of global manufacturing, and the lines between real and fake really begin to blur. It’s a boon for copyright attorneys, who never have to look far for their next case. It’s not so great for businesses whose profits are being hacked away at by copycats. And while this battle is usually fought over luxury goods, it also applies in more everyday instances, with battles over trademarks for consumer goods.
While patents apply to new inventions with industrial applications, which expire after 20 years in the U.S. to encourage competition, a trademark can continuously be renewed. Trademarking arguments often fail, but successful ones can be very successful. It’s why Toblerone retains its triangular shape and Coca-Cola its signature fluted glass bottle—having proven their distinctiveness and centrality to the advertising of both products, although both of these cases have been challenged, of course.
The latest shakedown comes from Cadbury, the British confectionary company established in 1824 in Birmingham and now owned by Mondelez International (formerly Kraft Foods). You might be familiar with their delicious eggs.
Cadbury’s case has less to do with fake eggs and everything to do with the color purple. The company is currently trying to alter the description of its logomark (and establish its validity in light of more recent trademark decisions concerning non-traditional marks), specifically its exclusive use of 2865c, the Pantone shade that so defines the brand, was dismissed this week by the UK’s Court of Appeal. Cadbury maintains its trademark on the use of 2865c for chocolate bars and tablets, when it’s “applied to the whole visible surface,” but it was unable to secure the detail that the trademark on it should be “the predominant color applied to the whole visible surface.” Its competitor Nestlé had reportedly argued this was too general, covering use of purple “in extravagantly different ways… as stripes, spots, a large central blob, or in any other form.”
The loss means opening up 2865c for use by competitors, or worse, knock-offs. If Cadbury was to appeal, there could be an argument under the UK law of “passing off;” but it’d have to prove that consumers had been genuinely confused and believed they were buying a legitimate Cadbury product, when in fact they bought a competitor imitating the packaging’s color, script, or imagery. Essentially, it’s a difficult argument to prove.
While it may seem bizarre that companies can claim ownership over colors, it’s also easy to see how a color can become so identified with a particular company that it acts as a part of the branding that’s as essential as the wordmark, packaging, or catchphrase.
Beyond logos, brand names, and artist’s work, trademarking can and has been applied to a whole roster of things: from Tarzan’s yell, to letters of the alphabet, athlete Usain Bolt’s lightning bolt pose, Beyoncé and Jay-Z’s children’s names, or “the smell of strong bitter beer” on a Unicorn dart. When artist Anish Kapoor bought exclusive rights to the Vantablack pigment, “the blackest black,” artist Stuart Semple responded by creating a fluorescent pink pigment, “the world’s pinkest pink,” and sold it for no profit with the caveat that the paint doesn’t “make its way into the hands of Anish Kapoor.”
The art and legal science of trademarking is itself a mutable beast. For every trademark, it seems, there is someone to copy it, sell it, or challenge it. It gets complicated, to say the least. An authentic and counterfeit item are often made in the same factory, by skilled workers using the same materials; though not necessarily to the same quality of finish, nor are they necessarily being properly remunerated for the work. Brands fight back by incorporating special, unduplicatable details in their manufacturing process, or via legal battles, while also appropriating the language of fakery themselves. Take Gucci’s “Guccy,” or Balenciaga’s branded ode to Little Trees air freshener (which led legal action by the company), or the Bernie(-ciaga) Sanders campaign. With so many layers of parody, bootlegging, and complex production lines, questions of legal rights around intellectual property are bound to get murky.
On the other hand, what’s wrong with a bit of competition? What may be most troubling are the instances where brands seek to secure their individuality, while being owned by larger conglomerates. Take the Walt Disney Company’s likely acquisition of 21st Century Fox’s movie and TV assets (20th Century Fox, FX Networks, and Fox Searchlight). Given the fact that Disney already owns Pixar and Marvel, acquiring Fox et al would be a considerable blow to the art of competition, variety, and diversity of perspectives within popular media. It harkens back to the origin story of Disney World, when Walt Disney set up a series of individual shell companies chaired by Mr. M. Mouse to purchase enough property to build the “land.” It was more than would’ve been legal for any one company to own, giving him a monopoly on space and the communication of meaning.