I once worked with a client who had determined that, as a part of their brand strategy, they were going all out to ‘own’ a particular colour. 

As you can imagine, it didn’t quite work out, as the colour in question was already rather prevalent and employed to some effect by businesses with far deeper pockets. The chances of bringing a case against the battery of barristers (or perhaps an eloquence of lawyers?), let alone succeeded, would have been quixotic at best. And delusion at worst. Actually, properly trying to own and then defend something like a colour requires some pretty determined work and funds, and often to no great gain.

But the enthusiasm for trying to take charge of certain assets in a brand’s cabinet never seems to dim, probably spurred on by examples where case law can be established - I’m thinking of Cadbury’s Purple (Pantone 2865c) with a century of previous, or Burberry’s check perhaps. 

However most brands aren’t blessed with those kinds of assets (not to be confused with actual proper Assets) and much of what brand’s like to think of as ‘assets’ are really rather interchangeable once you get past the rendered versions of the trademarks (or rather more prosaically, the logos.)

Which makes for fascinating (well, for design wonks like me) when businesses start fighting over things like that in court, with the latest instalment of two bald men - in this instance one Lidl vs. Tesco - fighting over a comb being a dispute over a yellow circle and a blue background. 

Let me defer to Mr Cuddigan KC (for it is he, pleading Tesco’s case) who states:

“…that to establish infringement Lidl would need to satisfy the judge that “creating a yellow circle involves sufficient artistic skill and labour to comprise the author’s own intellectual creation”. He argued that Lidl had not established this.” 

Slightly disingenuous perhaps, as it’s a bit more that ‘just a yellow circle’ in question.

The learn-ed KC then argues that furthermore:

“Lidl had to prove damage, and added in a written argument: “That means that the customers who have been misled would otherwise have gone to Lidl to purchase the goods in issue, or that the deception causes them to take a materially disadvantageous view of Lidl.”

But was anyone shopping in a Tesco mislead? More likely the effort backfired. Perhaps customers in Tesco think the low price being displayed inside the spot in question might think (by association of the design context) that’s Lidl’s cheaper price being shown?

Beside the amusement that a business can think a claim to owning something as obviously generic as the visual article in question, there is a serious point. That a willingness to take something purposely designed (and so invested in) by someone else and pass it off as yours is pretty low ball. In this instance, the underlying point Lidl are making is that these things are ‘part’ of its logo and to be fair, for over 90 years. 

Copying isn’t a clever low-cost strategy, it’s a dumb high risk game of chance. Not saying it can’t be done (see the ‘Lord of the Bins’ thing doing the rounds {ha ha!} at the moment) but the difference between passing-off and pissing-off is just an ‘a’ and an ‘i’. Think I’ve seen those two letters together before in this context, can’t quite recall where though. But they’re definitely familiar.