In 1942, the city of Paris was rife with shortages. While World War II would be over for the French within a couple of years, the wartime shortages were not winding down. In fact, for several years, the French government, faced with mounting deficiencies and the inability to seamlessly transport goods among various cities across the country (due, in part, to “the pitiful state of ports, train tracks, roads and bridges”), had been observing a legally-established system of rationing, which saw the aggressive control of everything from bread and raw materials to gasoline and paper products.
This meant that “there is no milk at all for ordinary people,” a reporter for the Guardian wrote at the time. “The sugar ration is about four ounces a week,” as for meat, that ration “worked out at about three ounces a week for each member of the family.” Since bones were included in that weight, the amount of food provided was less than a few ounces. For businesses, transportation services were largely limited, and the widespread deficits translated to a lack of supplies.
For one company, a then-105-year-old, family-owned leather goods and apparel manufacturer named Hermès, one immediate impact of the enduring scarcity was its inability to acquire its usual product packaging. Neither the creamy beige and gold cardboard boxes nor the rich marigold-hued ones with a shade of bronze running along the corners that it had traditionally used to package its high-end offerings were accessible. The boxes that had “defined Hermès’ elegance” for decades were no longer within its reach.
As the brand’s story goes, the only packaging that was available – and offered up to Hermès by its supplier – came in a vibrant orange, “the color nobody wanted.” Given the option of adopting a bright new hue for its boxes or being left without packaging for its equestrian-centric leather goods and growing businesses of handbags and ready-to-wear, which were first incorporated into the house’s offerings in the 1920s, Hermès chose the former, and “the orange Hermès box was born.”
The result is the birth of a brand-identifying color that is “iconic by accident.” That is how Hermès describes the orange hue for which its brand – and its packaging – has become known, given that “generations of boxes have followed since” it was first forced to adopt the hue. As Dana Thomas wrote decades later in her book, Deluxe, the color became the brand’s signature “almost overnight.”
The fact that the specific orange color – when used in connection with certain goods and services – is “symbolic of” a single brand, as Hermès puts it, is significant both from a branding perspective and from a legal one. Due to Hermès consistent and largely exclusive use of the “warm citrus color” on the packaging of luxury handbags, clothing, home goods, etc., the color itself – one that the brand says is “not listed with Pantone” (i.e., not part of the company’s standardized color categorization system) – serves as an indicator of source. In other words, when consumers see a box or shopping bag in that specific color, even without a brand name on it, they likely know it came from Hermès and some coveted leather good is likely inside.
In addition to being a valuable asset from a consumer perception standpoint, that level of recognition in the minds of consumers means that the particular shade acts as a trademark in much the same way as a brand name or logo. (A trademark is generally defined as any word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others, and following from the Supreme Court’s 1997 decision in Qualitex Co. v. Jacobson Products Co., that list can very well include colors).
Because of its specific and enduring use of the hue and consumers’ ability to link that color to a single brand as a result (to some extent, at least), Hermès has amassed trademark rights in the color and corresponding trademark registrations throughout the world. In the U.S., for instance, the brand maintains registrations that claim exclusive rights in the orange color in connection with its name and horse and carriage logo, as well as for the packaging of its various fragrances.
Meanwhile, in its native France, as well as in Italy, Hermès has registrations for the color, on its own, for use on “product packaging” in connection with garments, leather goods, cosmetics and fragrances, and retail services, among other things.
In the European Union, Hermès has not fared quite as well in terms of registrations for the color, itself, with the European Union Intellectual Property Office (“EUIPO”) refusing to register the mark in 2005 on the basis that Hermès failed to “demonstrate that the mark had acquired distinctiveness in the minds of the public as of the date of the application.” According to the EUIPO, this was partially due to the fact that “the color orange cannot be considered as an exceptionally unique and uncommon shade but as part of the basic colors [that are] used in advertising and on packaging for a wide range of consumer goods.”
More than that, the trademark body for the 27-member bloc asserted that “consumers generally do not tend to identify the origin of products from a color per se,” and that without establishing the requisite level of secondary meaning, such a registration would “give its holder an unjustified monopoly over its competitors in the market.”
Counsel for Hermès appealed the EUIPO’s decision, but proved unsuccessful after failing to provide a “written statement setting out the grounds of appeal,” according to the July 2005 decision from a 3-member panel for the EUIPO’s First Board of Appeal dismissing the appeal.
It would be interesting to see if, after fifteen years of significant sales, advertising, and third-party media attention, whether the EUIPO would come up with the same determination in terms of acquired distinctiveness. Given the increasing reliance by brands to double-down on color-specific marks (and registrations for those marks – from established names Christian Louboutin and Tiffany & Co. to relative newbies like Glossier) and in light of the fact that Hermès has been filing no shortage of applications across the globe for marks ranging from its name and the names of various product styles to elements of its packaging, we may not need to wait too long to find out.