Deep Dives
After our 2023 Barbie Pink summer, we are having a BRAT Green moment. Described by the pop singer Charli XCX as slimy, really unfriendly and uncool, and even offensive, off-trend and wrong, the cover of the artist’s latest album is meant to epitomize the idea of brat. In other words, having “a party girl lifestyle with a polished edge” and also being “honest, blunt, and a little bit volatile.”
Charli XCX’s BRAT green
The viral Apple dance, the swatches of BRAT green held up by Charli XCX’s fans during her concerts, and the BRAT wall indicate the color’s embrace by consumers of Charli XCX’s music. But this particular shade of green has also been embraced beyond consumers of Charli XCX’s music. Fashion brands, for example, are citing the shade of green implicitly and expressly in their own promotional campaigns. Using BRAT green, or even just referencing it, is one way that fashion brands are riding a pop culture moment to compete for consumers on the market and sell their products.
ThirdLove, Banana Republic, Ferragamo & Isaac Mizrahi’s referencing of BRAT green
As BRAT green has hit the zeitgeist, commentators have noted that it’s far from a color that is foreign to the fashion industry. In what we might call a fashion feedback loop where present colors are inspired by past colors and past colors become relevant for the present, commentators have seen the antecedents of BRAT green in Miuccia Prada’s 1996 Prada collection, the Spice Girls’ 2 Become 1 album cover and music video, and even in a 1968 VOGUE cover story promoting “Beauty and the Little Green Dress” for that 1960s summer. The private regulator of color most called on by fashion brands, Pantone, has even been identified as starting a cyclical craze for green with its christening of greenery as the color of 2017.
As BoF observed even when looking at 2024 fashion shown before Charli XCX’s album dropped, “a brat-style green was on Prada and Gucci’s menswear runways last month, and has been on the rise for a few seasons now, according to trend analytics firm WGSN.”
Far from shying away from this feedback loop, Charli XCX has leaned into the color’s accessibility through her album’s marketing campaign. Brands can use the Brat generator to create their own promotional images in BRAT green. As VOGUE Business reported, “Brat has generated $22.5 million in media impact value, according to Launchmetrics.” Brands are participating in the trend to increase their own sales. But this accessibility also raises a legal question. Why are today’s originators of colors, like Charli XCX, facilitating easy access to the colors they’ve invested a great deal of time and money to develop? Why can competing brands all reference the same BRAT green this summer?
A “Beck Green” top for sale at the singer’s concert in New York
The easy answer to this question is that, despite its totalizing presence this summer, BRAT green has likely not yet acquired the function that trademark law cares about most: signaling source or the origin of the goods on which it is placed. As TFL has previously outlined in its Primer on Color Trademarks, colors in the fashion industry that are applied to specific products can be owned by fashion brands as trademarks. Colors, in other words, can act as indicators of source: telling consumers who made or stands behind a product offered for sale. But colors’ ability to indicate source and act as trademarks can only happen after a period of time. This acquisition of the ability to indicate source, or acquiring distinctiveness, is known as secondary meaning. Colors are considered trademarks under the law only after consumers see a color on a specific product and think of who made the product. This association subsumes other, more primary, messages that a color might convey.
To take the exemplary fashion example, consumers need to see red on the sole of a shoe and think that Louboutin made the shoe, not just that red is a sexy color or a color that’s prevalent in a particular design aesthetic like “Chinese-themed fashions” (to quote YSL’s arguments that it had fairly used Louboutin’s red).
Proving this secondary meaning for colors is not necessarily easy. As Deborah Gerhardt and Jon Lee have shown in their article Owning Colors, there are very few single-color trademarks registered with the United States Patent and Trademark Office. At the same time, as Jeanne Fromer has explored in her article Against Secondary Meaning, some brands’ marketing bonanzas might make it easier for brands with deep pockets to prove secondary meaning through advertisements, volume of sales, the length that the brand has used the color exclusively, consumer surveys, and third party media coverage. There is also an important barrier to colors’ ability to serve as trademarks: functionality.
Colors that are essential to the use or purpose of a product, affect a product’s cost or quality, or would place competitors at a significant non-reputation related disadvantage if one brand controlled their use on specific products on the market are funneled outside of trademark law. Through the functionality doctrine, trademark law recognizes that accessing certain colors is needed to compete on the market. So, one producer of bandages can’t have a monopoly on the color pink on bandages because this pink matches some skin tones and because there is a competitive need for a variety of flesh-colored wound dressings (In re Ferris Corp. 59 U.S.P.Q.2d 1587 (T.T.A.B. 2000)).
Similarly, John Deere can’t have a monopoly on the single color John Deere green on farm equipment because farmers like to match their farm machinery across brands, just like lighting might match the architecture of a building (Deere & Co. v. Farmhand, Inc., 560 F. Supp. 85 (S.D. Iowa 1982).
Significant non-reputation related disadvantage (also known as aesthetic functionality) takes what McCarthy’s Treatise on Trademarks and Unfair Competition calls “traditional uses” of color into account (Functional uses of colors are not protectable, 1 McCarthy on Trademarks and Unfair Competition § 7:49 (5th ed.)). One flower company cannot, for example, have a limited monopoly in black flower boxes. If they did, consumers would have to go to one flower company to send messages of condolence or even to participate in a holiday like Halloween (In re Florists’ Transworld Delivery, Inc., Serial No. 77590475 (T.T.A.B. Mar. 28, 2013).
Some scholars have called for expanding the aesthetic functionality doctrine to include even more factors. Justin Hughes, for example, has suggested in Cognitive and Aesthetic Functionality in Trademark Law that consumers’ cognitive and psychological responses to colors that predate a trademark owners’ activities be included in assessments of functionality. As Hughes suggests, we might see some cultural facets of colors as functional, like pink as a traditionally feminine color or blue as a traditionally masculine color.
The identifications between a color and certain cultural communications that happen over a period of time, before a brand starts using a color, may already provide a reason to funnel certain colors out of trademark law. Colors that are linked to traditional cultural moments or messages are needed to compete because consumers want these colors for reasons beyond a brand, mainly thanks to what Hughes also calls acculturation. For example, we’re used to wanting red and green on Christmas decorations, so one company can’t have a monopoly in the colors red and green on a package of Christmas tree lights (In Re J. Kinderman & Sons Inc., 46 U.S.P.Q.2d 1253 (T.T.A.B. 1998)).
This also implies that colors with such cultural preferences may not even satisfy a distinctiveness test and are ornamental. On this distinctiveness note, there is a wider literature considering the relationship between expressions and genericness — the idea that a symbol that is the basis of a trademark can not only symbolize a product (and be generic in the classic sense) but can also share an important communication that should not be stifled by the trademark owner. Rochelle Dreyfuss, for example, already formulated a proposal for expressive genericity in 1990.
Expressive genericity would recognize that the “surplus value”, as Dreyfuss terms it, of a word like “Barbie” can be used in hybrid source-indicative and other signaling ways. A t-shirt with “Barbie” has value not necessarily because a consumer thinks the t-shirt is made by Mattel or just describes the consumer as a “Barbie” but for still other expressive reasons, like being the exclusive way to communicate the consumers’ participation in a Barbie movie viewing party. Funneling symbols with these expressive messages out of brands’ control when control of that symbol under trademark law would otherwise suppress speech is one way to address the tension between the First Amendment and trademark rights which we still see at play today in cases like Hermès v. Rothschild.
Functionality does not apply to all colors. Brands can use combinations of colors, name specific Pantone shades, and even layer colors into wordmarks to narrow their trademark claims and argue that a color is non-functional. John Deere, for example, does have a trademark right in a specific combination of a shade of green and a shade of yellow (Deere & Co., 239 F. Supp. 3d 964 (W.D. Ky. 2017). There is, in other words, a balance to be found within functionality. In Louboutin the Second Circuit allowed YSL’s monochromatic use of red all over a shoe to exist on the market alongside Louboutin’s red sole by limiting Louboutin’s red sole to a contrast with a shoe upper. Louboutin’s reputation, goodwill, and consumers’ identification of the brand as the origin of red-soled shoes existed only in a black (or other colored) upper and red sole. Louboutin’s trademark right still does not exist in a red upper and a red sole.
But this recognition that monochromatic colors may not always infringe single colors in the fashion industry is not necessarily a firm rule across trademark law. In other circumstances using wide swaths of a color in promotional campaigns might lead to secondary meaning in a single color applied to a specific category of goods. T-Mobile, for example, was successful in fending off Aio’s use of plum in part because T-Mobile had used “large swaths of [Process Magenta] …caus[ing its] advertisements to ‘brim’ with the color” over time (T-Mobile US, Inc. v. AIO Wireless LLC, 991 F. Supp. 2d 888 (S.D. Tex. 2014).
A central challenge of the fact specific inquiry of the functionality test is identifying when a color is connected to the reputation of a brand and when it is not. In other words, when is using a color which consumers associate with a brand free-riding on the brand’s reputation? When the use of a branded color is related to other things consumers want on the market, like sharing messages of mourning, matching products, and communicating messages of elegance or even sexiness, a color might be functional and, therefore, accessible to other brands on the market.
The question of how to differentiate between brand success and aesthetic functions, as the Second Circuit succinctly put it in Louboutin, is harder when brands are part of our pop culture. Just as a single branded color can acquire distinctiveness over time, so can a single branded color become a part of our culture (our belief systems, our identities, and our values as they are shaped by the communities in which we live) at a specific moment in time. When acquired distinctiveness and specific pop culture moments meet, brands’ reputations and cultural functions may seem indistinguishable.
Just think back to our Barbiecore experience last summer. The many shades of pink that women wore originated with Mattel and the Barbie movie but also signaled womens’ participation in a discussion about society’s expectations for women, what it means to live authentically as a woman, and the complexity of living with our insecurities.
Marketers know how powerful merging a brand’s reputation and distinctiveness with pop culture can be. So do the executives of fashion brands. Ynon Kreiz, the CEO of Mattel, characterized the company as “an I.P. company that is managing franchises” and emphasizes that “Barbie is not a toy; she is a pop-culture icon.” Louis Vuitton’s outsized (and therefore contested) presence at the Olympics in Paris this year is another example of how brands’ position themselves as cultural producers and not just manufacturers or sponsors. As Bernard Arnault, the CEO of LVMH, has stated, LVMH’s brands do not sell luxury, but culture.
For some fashion brands creating colors to embody and respond to our specific cultural moments is a reason for fewer, not more, trademark rights. For every Gucci Rosso Ancora, for example, there might be a Valentino Pink PP. Despite Valentino’s investment in the color, its development of a particular shade with Pantone, and the perception of the color as a “powerful brand signifier,” many of Pier Paolo Piccioli’s own statements and uses of the color prioritized the cultural zeitgeist over distinctiveness. As detailed in Valentino’s press releases, Pink PP was meant to highlight the construction, fabric, and craftsmanship of the individual garments and accessories. Pink PP’s purpose was to support a moment of reflection and a suspension of time, where the concentration of the viewer was trained on specific silhouettes and even people, not the brand.
Consumers could use the color to lift their mood, for empowerment, and to move beyond genders. In Piccioli’s words, Pink PP was a symbol not of the brand but of “details, volumes, proportions and cuts. We do not distinguish between genders, but we see real people.” (Fashion Network- March 2022). Real people included breast cancer survivors and portrayals of women grappling with the Dobbs decision, as the character Christina Hunter did in The Morning Show’s second season’s seventh episode Strict Scrutiny. And, like Pink PP could serve as a conduit for women grappling with the Dobbs decision, so Pink PP could also indicate engagement with the cultural icon of Barbie, especially during our 2023 Barbiecore summer. Pink PP, we might say, was more pop culturally functional than anything else.
Images (top to bottom, clockwise) of Valentino’s Pink PP Collection, items from the Pink PP collection in the Valentino Archive (photo by author) & Piccioli’s Pink PP dress for Margot Robbie.
But if brands’ reputations and their colors’ distinctiveness are increasingly caught up with culture, like Barbie Pink is integral to a pop-culture icon and not just a product, what should trademark law do when one brand is equated with a color’s timely cultural message? How do we stop a brand like Mattel from making us see all shades of pink, including Valentino’s Pink PP, as Barbie Pink? How do we separate a brand’s distinctiveness from our pop culture?
We might start thinking of functionality not just in terms of utility and aesthetics, but of culture too, especially pop culture. To a certain extent we already do this through what we now call aesthetic functionality when we consider connections to holidays, like Halloween, or the expressive purpose of specific colors on specific goods (like black on flower boxes). But, as branded colors, like BRAT green, meet our values and beliefs at specific moments in time, we might consider definitively relegating these colors to a public domain outside of trademark law for a specific period of time.
Some brands, like Valentino (or, we might rather, say, Creative Directors like Pier Paolo Piccioli) already recognize the cultural power of allowing their colors to circulate in different venues and on different products. Control by the brand is not, in these circumstances, about acquiring distinctiveness but, rather, about allowing a color to function as an indicator of peoples’ lived experiences. Even brands like Mattel recognize this power: while it seemed like almost every pink fashion collection was a Barbie collaboration, we have not seen Mattel rush to register the color Barbie Pink alone as a trademark. Perhaps cultural functionality is the most BRAT thing of all: allowing colors to be honest, blunt, and even a bit volatile as they exist outside of a brand and within our pop culture.
Felicia Caponigri is a Visiting Scholar at Chicago-Kent College of Law and the Founder of Fashion by Felicia, LLC. An attorney by training and an academic by calling, her article proposing a doctrine of cultural functionality in trademark law is forthcoming in 2025 in the American University Law Review’s volume 74.