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COLOR TRADEMARKS IN THE POTATO CHIPS INDUSTRY

October 15, 2023

* Srijita Adak

INTRODUCTION

Potato chips are snacks for all ages and for all times, be it a 10-minute break between two classes or there is only rasam and rice on the hostel menu. Whenever one thinks about eating chips, at the very first we try to remember the color of their packaging. Most of the time, one remembers the brand and its flavor by its packaging color. This brings forth the query: Does the potato chips industry have a system of color trademarks in place? At present, the answer remains negative; there is no prevailing color trademark within the domain of potato chips. The manner in which brands consistently maintain a distinct color palette that aligns with specific flavors across their product range is indeed intriguing. The enduring yellow hue of classic salted chips, as prominently displayed in brands like Lay’s, Pringles, Parle’s wafers, and Haldiram chips, engenders curiosity about the potential existence of color trademarks in the potato chips industry.

POTATO CHIP BRANDS AND THEIR COLOURS

Several prominent brands in the potato chips industry showcase a remarkable consistency in assigning specific colors to particular flavors within their product lines. For instance, LAYS utilizes a color-coded system: blue signifies “India’s Magic Masala”, yellow represents the “Classic Salted” variant, red denotes “Spanish Tomato Tango”, light green is associated with “American Style Cream & Onion,” and dark green is emblematic of “Chile Limon.” Similarly, PARLE’S WAFERS employs a color-based approach with blue for “Masala Masti”, yellow for “Classic Salted”, red for “Tangy Tomato”, and light green for “Cream n’ Onion”. HALDIRAM’S CHIPS also adopts this practice: yellow denotes “Classic Salted”, red designates “Salted Banana Chips”, light green represents “Pudina Treat”, dark green is linked to “Papri Chaat”, and orange signifies “Banana Chips Tangy Tomato”. PRINGLES follows this trend by using blue for “Cheddar & Sour Cream”, orange for “Cheddar Cheese”, red for the “Original Crisp” variant, light green for “Sour Cream & Onion,” and dark green for “Jalapeno”. This consistent color-coding strategy employed by these brands raises the question of how they manage to maintain such uniformity in coloration across various flavors.

POSSIBLE REASONS:

1. Marketing strategy

There is a strategy in the business i.e., ‘Follow the market’. For instance, if one would launch a telecommunication company like Jio, one must follow strategies as Jios’ instead of any unfamiliar company. Likewise, if one is trying to start a new potato chip business, it is better to follow the already established chips brand so that it would be easy to run the business. These are common to trade practice.

For example, Lay’s under PepsiCo started in 1932, and it is now the market leader in the potato chips industry. Then Parle’s Wafers, a market challenger, launched the same flavors with the same color coding as Lay’s. It is known as a cloner in the chips market.

2. No International Flavour Standard

There is no international flavour standard that if we are making a potato chip salted, then its packaging color must be yellow. It depends on the company how they want to color the product’s packaging. If the flavour is tomato, then in the general sense, the color would be red, just like Lay’s and Parle’s Wafers, but there is no mandate to color it red. They can color it as they wish. For example, Haldiram’s red one’s flavor is salted banana. There must be some international flavour standard to maintain one uniform style to avoid mismanagement or confusion.

For example, earlier, the phone charger was either USB type B or USB type C. But recently, the USB type C got the international standard by the International Electrotechnical Commission, i.e., all the phone’s chargers will be only USB C type. Thus, it standardized the charging ports.

CAN ONE FILE A COLOR TRADEMARK FOR THE PACKAGE OF YOUR NEWLY LAUNCHED CHIPS?

The answer to this question is affirmative but subject to terms and conditions. Colour can be trademarked until it is not functional i.e., the colour has to meet the purpose of identifying the source of the product. For example, Tiffany & Co. has a colour trademark on a blue shade of colour, Barbie has a colour trademark on a pink shade of colour and Cadbury has a colour trademark on a purple shade of colour. A single colour, be it yellow or red, can be trademarked when it recognises as a ‘well-known trademark’ under section 2(zg) of The Trade Marks Act, 1999. As per Rule 124 of the Trademark Rules, 2017, a registrar will determine a well-known trademark if it has been used, registered or filed an application for registration and the public recognizes it at large in a wide geographical area. For example, Google has a ‘well-known mark’. So, if the color has been used for many years and it has a reputation and distinct nature for the particular product and acts as an identifier of the product, then it will be proved that the product’s color is a well-known mark. Thus, it can get the color trademark registration.

So, the color must -

  1. Have a distinctive nature.
  2. Have long usage and reputation in the market.
  3. Act as a source identifier of the product.

Thus, it can be said that anyone can file for registration of the color trademark, but it is difficult to prove the distinctiveness of the newly launched product. However, it’s not impossible, as today’s era is the era of the Internet. The distinct nature can be established through ample press coverage and social media posts, even for a newly launched product.

CASE LAWS:

In Colgate Palmolive Ltd. & Anr. v. Anchor Health & Beauty Care Pvt. Ltd., the Delhi High Court held that Colgate’s red and white colour scheme is distinct and competent to identify the business of Colgate. Thus, Anchor Health & Beauty Care Pvt. Ltd. is liable for passing off a trade dress.

In Deere & Co. & Anr. v. Mr. Malkit Singh & Ors. (2018), John Deere owns the trademark right to use its green and yellow color scheme for its tractors and agricultural machines and is a source-identifier of the product, so any other agricultural machinery makers can’t use the same color separately or combined for their products.

In Marico Limited v. Mukesh Kumar & Ors. (2018), it was held that the blue colour of the Parachute is a source identifier and Everest Coconut Oil cannot use it.

CONCLUSION

Ultimately, the potato chips industry offers a fascinating blend of branding, consumer perception, and legal considerations. While the concept of color trademarks is intriguing, its implementation requires a delicate balance between brand recognition and legal validation. As the industry evolves, the relationship between color and brand identity will continue to shape consumer experiences and market dynamics.

Thus, the ‘Follow the market’ strategy as discussed earlier, in which the established trend of the market, will be simply followed to run the business and get the expected profit easily. Just like Parle’s wafers, a market follower launched the same flavours with the same color coding as Lay’s, the market leader. Additionally, in the absence of international flavor standards, i.e., it is not that classic salted means yellow and tangy tomato means red. It can be of any colour, just like Haldiram’s salted banana flavour is of red colour.

REFERENCES:

  1. Rae Earl, Crisp packet colors should have an international flavor standard, GOOD FOOD (Aug 28, 2023, 9:30 PM), https://www.goodfood.com.au/eat-out/news/crisp-packet-colours-should-have-an-international-flavour-standard-20200306-h1mc8u
  2. Shambhavi Anand, USB Type-C to be standard mobile charging port from March 2025, THE ECONOMIC TIMES (Aug 29, 10:05 AM), https://economictimes.indiatimes.com/industry/cons-products/electronics/bis-comes-out-with-standards-for-usb-type-c-charging-port/articleshow/96522540.cms?from=mdr
  3. Poulami Karjee, Marketing Strategy in the Indian Potato chips market, SLIDE SHARE (Aug 30, 11:10 AM), https://www.slideshare.net/PoulamiKarjee/
    4. marketing-strategy-in-the-indian-potato-chips-market
  4. T. Prashant Reddy, The ‘Well-Known’ Trademark under the New Trade Mark Rules, 2017: Is the New Procedure Constitutional?, SPICYIP (Aug 31, 11:25 AM), https://spicyip.com/2017/04/the-well-known-trademark-under-the-new-trade-mark-rules-2017-is-the-new-procedure-constitutional.html
  5. Amy Hsiao, Protecting colour Trademarks in Asia, IPWATCHDOG (Sept 01, 12:2 PM), https://ipwatchdog.com/2022/06/03/protecting-color-trademarks-asia/id=149403/
  6. Colgate Palmolive Ltd. & Anr. v. Anchor Health & Beauty Care Pvt. Ltd., 2003 VIII AD Delhi 228
  7. Deere & Co. & Anr. v. Mr. Malkit Singh & Ors., CS (COMM) No. 738/2018
  8. Marico Limited v. Mukesh Kumar & Ors., CS(COMM) 1569/2016
  9. The Trade Marks Act, 1999, § 2(1) (zg), No. 199947, Acts of Parliament, 1949 (India)
Author:

* Srijita Adak
4th Year Law Student, IFIM Law School, Bangalore

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.