Prince Estate Litigation
By Cody Ross, Esq., Intern for
AnnMichelle G. Hart, Esq.
March 30, 2021
What color comes to mind when you think of former singer/songwriter, Prince? It is probably his distinct color of purple that all of his vinyl records and CDs have had on them and that he constantly wore. Well now Prince’s estate, through his company Paisley Park Enterprises, owns a trademark for that specific shade of purple, called Love Symbol #2. The trademark covers all goods related to music, video, and motion pictures. Prince and Love Symbol #2 have reached the status of being able to exclusively own the rights to use a specific color for their goods. But what does it mean to have a trademark in a color, and how can someone even trademark a color?
To answer those two questions, it is first important to determine what a trademark is. A trademark is any mark or symbol that is used to identify goods or services. Common examples include logos, slogans, mascots, jingles, and company names, among many others. Trademarks are divided among a multitude of classes covering different industries and types of goods and services. When a trademark is issued, the owner of that trademark is permitted to have exclusive use of the trademark in its category and to prevent others from using substantially similar marks that would likely confuse consumers. An example is that Coca-Cola has the exclusive right to use that trademark in soda beverage sales and can stop other companies from having similar names in the soda industry.
To receive a trademark, the mark must be distinctive from the other marks and identifiers in the class in which that trademark is sought. This can either be achieved through inherent distinctiveness (think Apple for the sale of computers as they are not normally related) or through acquired distinctiveness (also called secondary meaning). Acquired distinctiveness relates to when a mark starts out as something generic and works only as a description of the goods or services, but later becomes so related to the goods or service that consumers only think of that good or service when they encounter the mark. An example would be California Pizza Kitchen, where the name started as simply a description of the restaurant and now has come to mean a specific chain of restaurants and its food products. The most common way to acquire this distinctiveness is for the mark to be used for at least 5 consecutive years, so as to create the image of that good or service with that mark in the consumer’s mind.
Just like how logos, company names, and slogans can be trademarked, so can colors. If the color is able to gain the acquired distinctiveness necessary, then the color can be trademarked, and exclusive use granted. The two most well-known examples of this are Louboutin shoes, and their distinctive red soles, and Tiffany and its specific “Robin Blue” boxes for its jewelry. These are colors that originally meant nothing to the products being sold but have become so ingrained in the product itself that if you hear of Louboutin Red or Robin Blue, you know exactly what product they came from.
This is where Prince and Paisley Park Enterprises comes in. Prince used the same exact shade of purple, Love Symbol #2, to cover the top of his CDs since 1992. This color has come to be associated with Prince and his CDs and other physical embodiments of his work since that time. Prince would often be seen in this shade of purple and all physical copies of his work were covered in Love Symbol #2. This created the acquired distinctiveness, and required secondary meaning, so as to allow Prince’s estate to trademark the color. Prince became so intertwined with this color, that he is the only person that comes to mind when someone sees a purple CD, even if they cannot tell otherwise that it is a Prince CD.
By having this trademark, Paisley Park Enterprises will be able to stop others from using this shade or any closely related shade on any goods related to music, video, and motion pictures. This allows Paisley Park Enterprises to stop any entertainment company (whether music or video related) from putting Love Symbol #2, or any closely related color, on the packaging for their products. This is a broad power and is likely to lead to litigation about the determination of how close is too close. But this also shows the power that consistent and targeted marketing can create. Prince’s brand was so powerful, that his estate is now able to control the use of a specific color in all physical copies of entertainment works.