This article is written by Shradha Jain, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.
June is Pride month. For many people, the annual LGBTQ + Gay Pride Month is an important cultural milestone. Every year, LGBTQ+ communities around the world celebrate the pioneers of these communities who have fought for and are committed to achieving equal progress. This year marks the 52nd anniversary of Stonewall Rights. It launched the gay liberation movement and modern struggle for LGBT (lesbian, gay, bisexual and transgender) rights in the United States. Designed by Gilbert Baker (1951-2017), this colourful work has become a global icon.
This year, however, Pride, companies, and activists all around the world have simultaneously and uncoordinatedly adopted ‘The Progress Flag’ as their communal emblem instead. It was designed by Daniel Quasar in 2018 and includes black and brown stripes to represent people of colour, as well as baby blue, pink, and white to represent the trans flag. And it’s all part of a push to be more inclusive of the community’s diverse range of identities. Given that this flag has become more and more important over time, one might wonder whether the copyright and trademark laws of Europe, the United States and India can help determine whether the flag can be adequately protected under current intellectual property laws. We deal with the jurisdictions individually giving a brief overview of the IP laws and also what it costs to keep the flag free of IP protection.
Pride flag: Brief overview
This flag was displayed first time on June 25, 1978, on Gay Freedom Day in San Francisco. In 2015, the New York Museum of Modern Art (MoMA) classified the rainbow flag as an internationally recognized symbol along with other universal symbols including the ubiquitous “@” mark, the Creative Commons logo, and the recycling symbol. According to Baker, “I thought of the vertical red, white, and blue tricolour from the French Revolution and how both flags owed their beginnings to a riot, a rebellion, or revolution. I thought a gay nation should have a flag too, to proclaim its own idea of power.” According to Britannica.com, Baker saw the rainbow as a natural flag from the sky. He chose eight colours, each symbolising something — hot pink for sex, red for life, orange for healing, yellow for sunlight, green for nature, turquoise for art, indigo for harmony, and violet for spirit.
Given that this flag has become more and more important over time, one might wonder whether the copyright and trademark laws of Europe, the United States and India can help determine whether the flag can be adequately protected under current intellectual property laws.
Application of trademark law in various countries
A reference to Article 4 (b) of the EU Trademark Regulation 2017 (EUTMR) would reveal that a combination of colours can be registered as a trademark if the subject matter of protection follows the clarity and accuracy to grant protection also the Court of Justice of the European Union (CJEU) in the Ralf Sieckmann v. Deutsches Patent-und Markenamt, confirms that the subject matter of protection must be presented in a “comprehensible, permanent and objective manner”. According to Article 7 (1) (a) EUTMR, the European Union Intellectual Property Office (EUIPO) requires a connection between the systematic representation and uniform representation of colour schemes by the owner.
According to a clear and concise presentation of the subject matter, Article 7 (1) (b) EUTMR demonstrates the idea that the “distinctiveness of colour combinations” should be considered for a brand. In order to be distinctive, the colour scheme must not only respond to consumer wishes or be of a purely technical nature, it should not be used to indicate “a special characteristic of the product”. In addition, a colour combination is not distinctive and can be refused upon examination if “the existence of the colour combination in the existing market is verified”.
Taking into account the above-mentioned provisions, the Pride flag can be registered as a trademark if it is in a systematic and orderly manner, along with meeting other requirements set by the EUIPO. On closer inspection, however, the flag was subjected to countless interpretations and adjustments, which left traces of questioning and room for reflection on the idea of ”differentiation” under Article 6ter of the Paris Convention (PC). The article in the spotlight excludes from the baggage of trademark registration the types and kinds of “heraldic imitation” which includes badges, flags, and official symbols of the trade unions in the sense of “control, serenity, and guarantee”. In this context, two central questions arise: Firstly, the Pride Flag is neither protected as a flag nor as a heraldic symbol in the WIPO database. Proponents of the idea of protecting the Pride Flag could promote through ILGA Europe, which protects and represents the rights of the community across Europe to sign some kind of agreement.
You can register a colour as a trademark:
- Single colour trademark; one colour registers as a trademark if it is peculiar in business.
- Combination of colours trademark; more than one colour or combination of colours register as a trademark if it is unique.
While there aren’t many court rulings on trademark protection for a colour or colour combination, the position of the law as to what the law allows in that regard is clear. The definition of the trademark according to the trademark law includes “colour combination” and therefore it can be interpreted that colours in relation to goods and services can be protected under the trademark law
Section 10 of the Trademark Act states that a mark can be limited to a certain colour or combinations of colours, but such a limitation on the colour is only allowed when determining the distinctive character of the mark if it has not been claimed, then it is considered registered for all colours.
If the trademark applied for is a combination of colours that is the distinguishing feature of the trademark, this must be expressly mentioned in the application; however, in cases in which a particular colour is claimed, the applicant must provide evidence that the claimed colour or colour combination is exclusively associated with the applicant or exclusively designates its products. Trademark Rules, 2017 create the new regime by including the provisions of colour marks in the new rules.
In Louboutin v. Pawan Kumar, the court declared the red sole a well-known brand and recognized that Louboutin has been using the red sole brand since 1992 and is recognized worldwide.
United States of America
While in the United States the colour scheme could be protected for a long time, it wasn’t until the 1980s that it was recognized that a single colour could be protected as a trademark. This happened when Owens Corning launched the “Think Pink” campaign for its fibreglass building insulation. In 1985, a US appeals court in Washington ruled that the company had the right to prevent others from using pink as insulation.
The United States of America answered the question of assigning trademark status to individual colours in the affirmative. The Lanham Act defines a trademark as something that “includes any word, name, symbol, or combination”. The ultimate instance that determines that individual colours are US registered trademarks in the US is Qualitex Co. Jacobson Products Inc. where the United States Supreme Court gave the applicant the exclusive right to use a particular shade of green that the applicant has used in his business for several years.
Hence it can be seen that a colour or colour combination can be awarded only if it is in relation to a product and has acquired distinctive character in relation to such a product. Just the colour combination on its own cannot be accorded trademark under Indian and US law.
Application of copyright law in various countries
There is frequently a misunderstanding regarding how someone may copyright or protect the rights to a colour combination. You can’t truly protect or copyright the use of a colour combination in new works. For example, suppose you pick a colour palette and then design artwork using those colours. What is protected, however, is the arrangement of those colours into the rectangle form. This is considered a picture or piece of art and can be protected.
According to current intellectual property law, flags, like any other item susceptible to copyright, are never actively “copyrighted.” When you create a work of art or literature, you automatically have copyright protection, whether you want it or not. This has always been the situation under European copyright rules, and it is the same under US and Indian copyright laws.
United States of America
It should be noted that Baker designed the original version of the Pride Flag in San Francisco in 1978, which leads to a holistic claim that the Pride Flag may be subject to copyright law in the United States, particularly the Copyright Act. 1976 Baker’s version of the Pride flag is realistic “an original work of authorship, fixed in a tangible means of expression”. It gives reasonable grounds to believe that Baker is the first chain owner of the Pride Flag copyright as there have been various additions and implications to his original vision.
Original works are protected by copyright. If you create original literary, scientific, and artistic works such as poems, articles, films, songs, or sculptures, you are protected by copyright. Work must be made (rather than just recorded) by a human being; it must be an intentional alteration of reality. To be considered original, a work must be the author’s intellectual creation. It indicates that the author must have at least a modest degree of free choice when making the work, unmotivated by any objective criteria; this decision might represent the author’s creative individuality. A work does not have to be ‘artistic’ in any way; utilitarian, scientific, or informational works can also be protected by copyright. The originality level necessary for copyright protection varies by country, though it is quite low. An example is the European Flag which has been copyrighted and allows for non-profit or commercial use subject to certain conditions.
Copyright subsists throughout India in the following classes of works:
- Original literary, dramatic, musical and artistic works;
- Cinematograph films; and
- Sound recordings.
At first glance, the definition of “artistic works” under Section 2(c) looks exhaustive, in the sense that it utilises the word “means” rather than “includes.” It is defined as a painting, sculpture, drawing of any type (including a diagram, map, chart, or plan), engraving, or photograph in Clause (i) of Section 2 (c) of the Copyright Act, it is defined as a painting, sculpture, drawing of any type (including a diagram, map, chart, or plan), engraving, or photograph. This phrase makes it very apparent that any such work is not required to “possess aesthetic excellence.” Clauses (ii) and (iii) of the same section describe artistic work as “any other work of artistic craftsmanship” and “any architectural work of art.” This last paragraph, for all intents and purposes, broadens rather than narrows the definition of artistic work; in other words, determining whether a work is artistic under the Act will be based on the facts and circumstances of each case.
Microfibres v. Girdhar & Co
In this case, it was argued that if a piece of art simply transfers an artist’s idea onto canvas, then it would be an artistic work and should be protected by the copyright act. The court reasoned that creative work generated for independent existence can be distinguished from work made for application on another object via an industrial process. The purpose of the job is critical in determining the type of protection that will be provided. Thus, from the court’s observation, it can be concluded that Pride Flag is an artistic work and entitled to protection.
One instance of where a flag has been treated as an artwork and has been copyrighted is the Australian Aboriginal flag. Thomas holds the rights to the flag as an artwork, and the design will not be released into the public domain until 70 years after his death.
So, a flag can be treated as an artwork and is entitled to protection under copyright law. But if the Pride flag comes to be owned by a particular government, say US government then government works in the United States are not protected by copyright under 17 USC Section 105, so the national flag is in the public domain with certain restrictions on use. However, this is not the case in India where government workers are entitled to protection. This can be deduced by reading together Sections 2(k), 17(d) and 28 of the Copyright Act.
The rainbow flag has been the worldwide recognised emblem of the LGBT+ community since 1978. The designer has always advocated for the unrestricted usage of his flag and has never attempted to enforce his copyright.
Free but at what cost?
Whether a work is “copyright-free” depends to a large extent on the wishes of its creators, and Baker’s spirit of freedom will undoubtedly help spread the use of the rainbow flag in the United States and support the development of the LGBTQ+ movement globally and encourage wider adoption. There are many “free” pictures on the Internet, and this banner is used almost everywhere to celebrate pride events and the wider LGBTQ+ community.
However, from an intellectual property point of view, this method is uncertain. This can be compared with other copyright-free iconic symbols, such as the large “Peace Symbol” created by British artist Gerald Holt in 1958 for the Nuclear Disarmament Movement (CND). Over time, this symbol has been used almost everywhere on T-shirts, posters, and jewellery, but there is a risk of losing or having lost its intended meaning.
A modern parallel line can be drawn with the extinction symbol. It belongs to the international movement Extinction Rebellion. So far, the use of this symbol (the hourglass in the circle) has been relatively limited, possibly due to the controversy over concerns about civil disobedience and subversion. Of course, the same applies to the peace symbols of the 1960s and 1970s and the rainbow flag of the early LGBTQ+ movement.
Sometimes the context goes beyond the scope of the law and challenges it. Although those who fight for community rights by registering for Pride Flag have good reasons, the majority of the community believes this is a demonic attempt to monetize all voting rights. In fact, it is the decisive factor of pride: the absolute freedom of the public to use them helps to enliven and emphasize the beliefs symbolized by the flag. The rainbow flag is obviously not protected by strict intellectual property rights, because anyone can freely use it to undertake brand creation changes, but the rainbow flag retains its clear meaning and represents the LGBTQ+ community. This is the most interesting aspect of this logo: Its absolute freedom of use reinforces the message of this colour combination, which is completely opposite to the impact of freedom of use on the brand because it usually makes the brand universal; however, despite the symbol, it is currently very powerful, but its lack of protection may cause rainbow colours to become commonplace or be used in a confusing or misleading manner. For example, in Italy, the rainbow flag is often associated with “peace” so that an organization can be responsible for protecting the symbol of today’s LGBTQ+ community and making it permanent. Life is not all made up of rainbows and unicorns. Under the current intellectual property protection, the colour of pride should remain unprotected or not -this is a controversial issue.
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