The Pride flag is an interesting example where instant recognition and widespread fame actually undermine distinctiveness.
In this article, D&I Partner Andrea McShane and Trade Mark Partner Harry Rowe discuss the history behind the legal protection of the Pride flag and why businesses would struggle to register it as a trade mark now.
The history of the Pride flag
The first rainbow flag was stitched in 1978 by Gilbert Baker, a gay artist, drag performer and activist, for San Francisco’s annual Pride parade. He chose the rainbow as a symbol because of its beauty and its representation of diversity; originally, the flag featured eight colours: hot pink for sexuality, red for life, orange for healing, yellow for sunlight, green for nature, turquoise for magic and art, indigo for serenity and violet for spirit. The flag gained a new loaded meaning after Harvey Milk, politician and gay rights icon, who requested the design of the flag, was assassinated the same year.
For practical reasons, eight colours went down to six – hot pink fabric was inaccessible in large quantities and the turquoise stripe was removed to make the number of stripes even for symmetry – but its purpose and significance stayed constant.
In 2018, designer Daniel Quasar created the “Progress Pride flag”, adding a chevron with white, pink and light blue to represent transgender and non-binary individuals, and black and brown to represent people of colour in the LGBTQ+ community.
Is the Pride flag protected by law?
Gilbert Baker chose not to apply to register the Pride flag as a trade mark after he devised it. Interestingly, when an advocacy organisation attempted to register the flag as a trade mark in 1978, Baker enlisted Matt Coles, LGBTQ+ civil rights lawyer, to resist the endeavour.
Baker purposefully wanted to keep the flag free to use, as its symbolic power across the LGBTQ+ movement was more important than any potential commercial value, and proactively protected the community’s right to using the flag. He wanted it to belong to everyone.
The ‘Progress Pride’ flag is protected by copyright, an automatic right for artistic works, but Daniel Qasar offers a free Creative Commons licence for non-commercial use. The community can display it with appropriate attribution, but exploitation by large brands is prevented.
Could you register the rainbow as a trade mark?
UK law allows for the registration of a trade mark comprising any sign which distinguishes the applicant’s goods or services from those of other businesses, provided that the mark can be represented unambiguously on the register. This can include colours. For example, Cadbury successfully registered its purple (Pantone 2685C) colour mark in 1998, although the registration has since been surrendered. Similarly, a set of specific colours arranged in a certain way, like a rainbow, could also be eligible for trade mark protection.
However, as colour marks are typically not inherently distinctive, a brand would usually need to prove that the mark has acquired distinctiveness on account of its use over a number of years. The rainbow we know and love in the Pride flag is undoubtedly recognisable, but it is for this reason that a single business or organisation seeking to monopolise the sign would face difficulty. The Pride flag, or the rainbow alone, arguably could not indicate a specific commercial origin to consumers because they are already widely associated with a universal movement. That being said, it may be possible for a rainbow incorporated in a mark which includes other distinctive elements to be protected under a trade mark registration.
The Pride flag is an example of a strong symbol, which is widely recognised around the globe, but that recognition has been utilised to reinforce a symbol of community, rather than as a brand. It represents freedom, in the way it stands for LGBTQ+ rights and in the way that the ability to monopolise it is likely limited by trade mark law.
Read more about our commitment to fostering a diverse and inclusive culture at Mathys & Squire on our D&I page here.
