The art world was scandalized recently when artist Anish Kapoor announced that he has the exclusive rights to the world’s darkest pigment. Can Kapoor protect this pigment as a color trademark?
Colors as Trademarks
I’ve written before about color trademarks. Here’s one post from 2012, here’s another from 2013. Briefly, a color can be a trademark under U.S. law as long as it:
- Distinguishes the business’s goods.
- Identifies that business of the source of those goods.
- Is not essential to the product’s use or purpose (in other words, the color can’t be functional.)
- Does not affect cost or quality.
- Does not put competitors at a significant non-reputation-related disadvantage.
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Vantablack
The color in question, which is called “Vantablack,” was developed by a company called NanoSystems to be as black as physically possible. The color’s original function was for use on spy satellites. I’ve read that it absorbs “a maximum of 99.965% of radiation in the visible spectrum” and has been used on Stealth fighter jets.
As you can see from the picture above, the pigment is so dark that it makes a folded piece of aluminum foil appear perfectly flat.
NanoSystems has several patents in the U.S. and U.K. for the process of “growing” Vantablack. They have also applied to register the word VANTABLACK as a trademark in the U.S. in connection with a variety of goods and services. Remember, that’s not a color trademark per se, it’s a trademark pertaining to the name Vantablack.
The current controversy arose when it was announced that NanoSystems granted Kapoor the exclusive right to use the color for artistic purposes.
Let’s assume that NanoSystems’ patents provide the company with the exclusive right (for a certain period of time) to produce the color. We can also assume that NanoSystems has the sole right to use the word Vantablack as a brand or trademark in connection with this color.
But can NanoSystems or Kapoor claim trademark rights in the color itself?
Assuming Kapoor actually uses the color on works of art, it’s possible that he can. I should note that I’m looking at this from a U.S. perspective; I’m not an expert on U.K. trademark law when it comes to colors.
I see functionality as the chief issue here. All colors in a work of art serve an aesthetic purpose; to what extent do they also serve a functional purpose? The outcome of a case becomes very difficult to predict when it starts to drift between legal analysis and art criticism.
So, this is a bit of a punt, but in the end, the question of trademark protection for the color known as Vantablack may come down to how it’s actually used in an artistic work. If the peculiar qualities of the color are used in such a way that it can be said to have a function, that may work against its protection as a trademark. If, on the other hand, it’s used just to make a black sky more black, it might be no more functional than any other pigment, and therefore eligible for trademark protection.
As with a lot of legal topics, the interesting questions arise in the “edge cases,” meaning the ones that fall into a gray area. Or should I say a black area?
No, I shouldn’t.
Color our world blackened.
Image By Surrey NanoSystems – Surrey NanoSystems, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=34139562
