Can Food Companies Trademark Colors? Yes (But It's Not Easy)

·Editor

UPDATE: Contrary to previous reports, Veuve Clicquot says it has not launched a lawsuit against Ciro Picariello.

"Veuve Clicquot conducts an active and extensive worldwide policy to enforce its trademark rights against any kind of infringement and in most cases, the issues raised are amicably settled," a Veuve Clicquot spokesperson told the website Just-drinks.com, adding that the company informed Ciro Picariello of the similarity between their labels late last year. It’s unclear if Ciro Picariello plans to change the color of its label.

Champagne house Veuve Clicquot is raising a glass of bubbly to… its trademark infringement lawsuit against small, rival sparkling wine producer Ciro Picariello?

Well, yes, figuratively speaking. The 242-year-old company claims that the Ciro Picariello label is too similar in color to its own yellow-orange one, which is protected under a European Union trademark. Here’s Veuve Clicquot’s trademarked hue, Pantone 137C:

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Photo credit: Pantone

No other producer of sparkling wine (which falls under “Class 33,” as it’s known) is permitted to use that shade on bottles sold in the European Union.

That said, the Veuve label on our screens looks rather more yellow in color. (Wine site Wine-Searcher notes that Pantone 137C looks more yellow when printed.)

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Photo credit: Veuve Clicquot

By way of comparison, here’s a Ciro Picariello label. It’s only slightly more orange than Pantone 137C, but looks rather different from Veuve Clicquot, above.

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Photo credit: Ciro Picariello

Veuve Clicquot’s color trademark is notable because other companies have been unsuccessful in achieving a similar feat, particularly in the food and drink worlds. Recently, Nestlé sued Cadbury over its U.K. trademark of the color purple and won, invalidating Cadbury’s trademark.

Much less recently, in 1947, Life Savers sued rival Curtiss Candy Company for using a striped rainbow scheme similar to its own, but lost.

Trademarking a color is tough business, said United States trademark expert Sheldon Klein, an attorney at the Minneapolis law firm Gray Plant Mooty. There are nuanced differences between U.S., E.U., and U.K. trademark law, he allowed, but the three are strikingly similar. Klein says that Veuve Cliquot’s successful trademark bid was an impressive feat.

To secure a U.S. trademark for color, he said, a company must prove two things: that the color is not functional (such as the red of a stop sign), and that it is distinctive. The second requirement is easier said than done.

"You can’t just say you’ve been using this for two years," Klein explained. "The courts will usually require a lot of proof, in the form of a consumer survey. They [must prove that they have] established this secondary meaning in the minds of consumers."

Translation? Veuve must have proved that seeing the orange-yellow color in the liquor store refrigerator makes you think of their bubbly. And that doesn’t need to be true for the majority of Champagne buyers, said Klein. “Twenty-five percent is enough [in the U.S.].”

That’s where Cadbury likely slipped up, he extrapolated. “Their registrations were very broad,” he said. “They covered a lot of other types of food [beyond a single chocolate bar], and that’s why Nestlé won the case.”

So will Veuve Clicquot be victorious in its suit against Ciro Picariello? Time will tell. But Klein thinks Veuve stands a good chance of winning if Ciro Picariello’s label might confuse the average consumer. 

Just goes to show you that orange is the new… orange? 

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