Is justice colour blind?

Judges in the highest Court in the land have shown that, like all of us, they may be prey to the seductive effects of branding. And one of the world’s biggest brands may have been the loser.

The High Court recently refused BP leave to appeal an earlier Federal Court decision rejecting the petroleum giant’s application for a trade mark for the colour green. But remarks made during the hearing suggest that the judges at times got caught up in the current frenzy of “green” branding in the marketplace.

Consumers are now inundated with “green” claims, with everyone from energy utilities, banks and retailers to toilet paper invoking “green” credentials. “Green” has effectively become a brand in its own right. But it’s easy to forget that the word “green” hasn’t always carried this meaning.

When I was growing up, calling someone “green” meant they were raw, immature, untried or naïve. You could be green with envy. And having a “green thumb” meant you were a dab hand in the garden, but by no means a “greenie”. In fact, many gardeners with the greenest thumbs probably burned their incinerators, had no compost bins, didn’t mulch, wasted water and used all kinds of nasty chemicals to keep the indigenous bugs off the exotic ornamentals.

These were evocative and metaphorical uses of the word green… but not the colour green.

BP has been seeking for many years to register the colour green – not the word – as a trade mark in relation to petrol retailing. The High Court hearing in May was basically its last roll of the dice.

Reading the transcript, one could be forgiven for thinking that Justice William Gummow had decided in advance that “green” always has a particular meaning connected with the environment and that BP’s choice of green was related to this meaning, and not to brand identification. His Honour asked David Shavin, QC, appearing for BP:

“What is the… significance of fixing upon green? Trademarks, as we know, can have their attraction and force from an impact that is illusive or evocative upon the viewer. What is the idea here?... What is nature (sic) and healthy about the production or consumption of petroleum products?”

His Honour apparently struggled to follow or accept Mr Shavin’s explanation that the colour green had been chosen years ago by BP for reasons unrelated to what the word green may have come to mean in 2007. Indeed, it had been noted in an earlier trial in the Federal Court that BP has used green in relation to petrol pumps since 1927 in the UK and in Australia since 1954.

Justice Michael Kirby, while acknowledging the history of BP's use of green, remarked that it was:

“a clever colour (for BP) to have chosen so many years ago because it is now very much associated with the environmental movement”.

Was His Honour suggesting that BP, when choosing a colour for its bowsers in 1927, had “cleverly” predicted the meanings that the word “green” would take on 80 years later?

Perhaps it’s understandable that, in the midst of hundreds of volumes of evidence and with an intense focus on complex issues of law and the interpretation of language, both learned judges appear to have confused the word green and the colour green. But the ability to draw such a distinction is surely what the public expects of the ultimate triers of fact.

The national depression initiative chose the name beyondblue to take advantage of one use of the word “blue” to denote human sorrow. That doesn’t stop numerous businesses using, and seeking trade mark protection for, the colour blue in a range of different categories. Luxury jeweller Tiffany has a colour trade mark for its famous blue box, OneSteel for blue fencing wire and Pfizer for the blue colour of its diamond-shaped Viagra tablets. Naturally, none of these companies wants consumers to associate its brand with depression, but clearly none of them is worried that this will happen through their use of the colour blue.

Consumers can and do distinguish all the time between colours as visual brand identity symbols and the possible meanings of the words we use for colours. For example, ask consumers about colours and brands in the rental car category and you’ll find green identifies Europcar (nothing to do with the environment), yellow identifies Hertz (not “cowardly”) and red identifies Avis (not “communist”).

BP’s High Court appeal ultimately failed on a number of legal grounds. But just imagine the outcry if someone in authority had suggested in passing that when Australia Post sought a trade mark for the colour red in relation to postal services it was doing so in order to convey communist sympathies!