Introduction
The concept of specific colours being protectable as brand-specific trademarks (or as components of broader or more complex marks) is now well-established, but colour-mark protection is not enormously robust, and lacks specific definition of the degree to which 'nearby' colours should also be protected (beyond the vague statement that protection should cover variants such that the difference between the shades is 'barely noticeable').
My recent series of articles on the subject[1,2,3,4] have outlined a series of potential definitions for specifying the similarity between colours, and have included suggestions as to how a more formalised protection framework could theoretically be constructed. In this framework, colours are specified according to their RGB (red/green/blue component) values, with each component expressed as an integer from 0 to 255, providing a colour 'universe' (ranging from [0,0,0] (black) to [255,255,255] (white)) of 16.8 million colours, which can be considered as points within a 3D colour space. From this, a geometric distance (d) (in RGB units) between any two colours can be calculated, from which a similarity score (Scol) can be defined.
Furthermore, it was proposed that it might be appropriate for the protection for a specific colour (within appropriate goods and services classes) to cover not only that colour exactly, but also a sphere of points (representing nearby similar colours) surrounding it in colour space (to account for - for example - variations in printing and digital display processes), up to a specified radius (of the order of, say, d = 10 RGB units). The assertion is that a maximum distance of order 10 units would encompass minor variations, whilst still covering a space of points which are all nominally 'more-or-less the same colour'.
In this article, I consider the visualisation of the degree of variability which would be encompassed by a framework of this nature.
Analysis
As defined above, the set of points covered by a protected 'bubble' (sphere) of radius d would sit wholly inside a cube of side-length 2d, with the edges of the sphere just touching the central points of the faces of the cube (Figure 1). For d = 10 units, the sphere would contain approximately 4,189 (i.e. ⁴⁄₃ π d 3) points (the number of individual protected colours), and the cube 8,000 (i.e. (2d)3) - i.e. the upper limit of the portion of colour space which would need to be searched to identify all protected variant - although the total numbers would be lower if the colour at the centre ([Rcentral,Gcentral,Bcentral]) was near an edge or corner of the overall colour space (as the components of any colour cannot be less than 0 or greater than 255).
Figure 1: Schematic of a protected 'bubble' (sphere) (of radius d) of points within colour space
As an illustration, we can first consider a colour near the overall centre of the colour space (say, [128,128,128], a shade of mid-grey). In this case, there are actually 4,169 distinct colours within a sphere of radius d = 10 units (noting that R, G and B can only take integer values) (i.e. ranging from [118,128,128], [128,118,128] and [128,128,118] to [138,128,128], [128,138,128] and [128,128,138]). The amount of variability contained within this set of colours is shown in Figure 2, in which (for convenience of manual review), the colours are sorted by their H (hue) values (i.e. the position within the spectrum of their dominant / 'base' colour, and neglecting saturation (intensity), value (darkness) and luminosity))[5].
Figure 2: Visualisations of the single colour [128,128,128] (left), and (shown as vertical bands) of the range of colours surrounding it up to a distance, d, of 10 RGB units (sorted by H (hue) values, left to right, then top to bottom) (right)
As mentioned above, for other colours near to (i.e. less than the distance d) an edge of the colour space, there will be a smaller number of possible variants contained within the (truncated) sphere of radius d = 10 units. The statistics and visualisations for some other basic colours are shown below in Table 1 and Figure 3.
Table 1: A selection of basic colours and the number of distinct colours in RGB space within a surrounding (truncated) sphere of radius d = 10 units in each case
Figure 3: Visualisations of the colours shown in Table 1 (left) and, in each case, (shown as vertical bands) the range of colours surrounding it up to a distance, d, of 10 RGB units (sorted by H (hue) values, left to right, then (where more than one row shown) top to bottom) (right)
Conclusions
The visualisations provided in this article provide an indication that the proposed value of d = RGB 10 units to encompass the protection offered by a colour mark registration, does seem to be reasonable, in terms of allowing a small amount of variability as may arise from brand- and product- production and visualisation processes, whilst still covering only a range of colours which subjectively appear nominally similar. The application of a quantitative framework along the lines suggested in these studies does offer the potential for objective comparisons between colour marks, and for the removal of subjective descriptions of degrees of difference.
It is, however, important to note that the suggested value of 10 units is somewhat arbitrary, and would certainly be up for discussion if a specific value was to be adopted as part of a formalised protection framework. The association of colour with branding incorporates a number of psychological considerations - for example, a previous study by Kumar (2017)[6] found that colour increases brand recognition by 80%, and accounts for between 62% and 90% of a consumer's initial judgement of a product. Furthermore, recent comments by Lord Clement-Jones, following on from the Influence at Work / Stobbs study 'The Psychology of Lookalikes'[7], have highlighted the importance of considering psychological and behavioural analyses in IP disputes, particularly in relation to brand lookalikes[8]. Accordingly, if any such framework were to be adopted, it would likely require a foundation based on research into the impact of colour variations on subjective perceptions of brand association.
Finally, in order to construct an effective basis for a colour-mark protection framework, it would also be necessary to incorporate additional considerations. The degree of overlap of the areas of the goods and services of two potentially competing marks would be likely to be highly relevant, and the thresholds may need to vary depending on whether single colours or colour combinations were being protected, for example.
References
[2] https://circleid.com/pdf/similarity_measurement_of_marks_part_1.pdf
[4] https://circleid.com/pdf/similarity_measurement_of_marks_part_4.pdf
[5] https://circleid.com/pdf/similarity_measurement_of_marks_part_6.pdf
[7] https://www.iamstobbs.com/the-psychology-of-lookalikes
This article was first published on 19 October 2024 at:
https://www.linkedin.com/pulse/what-degree-variability-might-covered-within-david-barnett-ajyoe/
No comments:
Post a Comment