When colour sticks to brand, suits fly

Think of Pepsi whenever you see the colour blue in a fizzy drink bottle? Or Coke, if it’s red? Do you associate a brand or a product with a particular colour?
If most of us do, can the brand then claim a right over that colour — just like a trademark?

A judge of the Calcutta High Court recently dived deep to find answers to such questions while delivering a judgment on December 13 that, in the coming days, might settle the debate that often seize marketers, especially when they resort to comparative advertisements.

The case in question is a legal battle between battery makers Eveready Industries and Gillette India Ltd, which makes Duracell. The bone of contention is an advertisement where Gillette is said to have indicated to Eveready by showing a red-coloured battery.

While Eveready is the only brand in the dry cell category that uses the red colour predominantly in its packaging (remember the Give Me Red punchline?), what judge Sukla Kabir Sinha tried to find the answer to this question: Does a red-coloured unbranded battery means only a particular brand?
Conversely, the court also had to decide whether Eveready can claim sole right to the colour red in its product category.

Gillette has through its advertisements been claiming that its Duracell batteries were ten times better than ordinary stuff. In its campaign, particularly in the electronic media, it said ordinary batteries can’t last longer and for imagery showed generic – but red coloured — ones.

Eveready complained claiming the colour red always played a dominant role in its product communication and Duracell was making a disparaging remark about its products by indicating they were inferior to Duracell.

“It is true that the product, an ordinary battery shown in the advertisement, did not have any label at all. The jacket was, however, painted red. If any battery is to be shown, it must be of some colour and red was used. Since the product of Eveready had a dominant effect on the indigenous market and most of their products were red in colour, unwary purchasers may think that such ordinary battery would mean Eveready. We cannot brush aside such possibility. At the same time, we would unhesitatingly say colour could not be the monopoly of any trade or product,” the Judge said. While delivering a lengthy order, the judge had to dwell on those pronounced on similar case in recent past.

“On the use of the colour red, controversy arose with toothpowder in the case of Dabur India where Dabur’s product Lal Dant Manjan was attacked by Colgate. There, the Delhi High Court passed an order of injunction considering the balance of convenience. Similarly, the court intervened when product Chyawanprash belonging to Dabur was attacked by a rival product in the case of Dabur India vs Emami. In the case of Cipla, the court categorically observed, there could not be any monopoly over colour... This decision, in our view, would not have any role to play since it’s not a disparaging action,” the order said.
The judge restrained Gillette from publishing the advertisement.