Under corporate capitalism even abstract objects can be exploited and used up. Colors, for example. Because color can be “a powerful and effective tool for creating brand identification”,
companies have gone to court to defend their colors against infringement. In Qualitex Co. v. Jacobson Products Co.
(1995), the Supreme Court ruled that a single color could, under the right circumstances, qualify as a trademark.
The Court dismissed arguments that the trademarking of single colors would lead to “color depletion”:
Most interesting, in our view, was the argument that since colors are in limited supply, allowing companies to appropriate colors will soon lead to the “depletion” of all of the attractive colors in each product line. The Supreme Court’s response to this argument was that if the use of a color related to the “functionality” of a product, it could not be trademarked. Examples were black outboard motors (on the theory that black motors appear smaller than motors in other colors) and blue fertilizer (indicating the presence of nitrogen).
It seems to us that the Supreme Court’s response to the argument of “color depletion” was something of a non sequitur. Even assuming that the “functionality” rule is applied liberally in this context, there is still a risk that attractive colors may be seized by early adopters, forcing companies later entering the market to chose a less attractive color and putting them at a competitive disadvantage.
Most interesting in our
view is that shades of color, even the very specific Pantone shades often used in “branding”
(see, for example, the Brand Standards Manual
for the University of Memphis
and the Color Guide for the University of Cincinnati
) are usually regarded as abstracta
, at least by those who acknowledge the existence of such entitities at all (but if not, just what are the Color Guides talking about?). “Color depletion” would be the exhaustion of an eminently nonrenewable