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Matte Gib (Image: Tina Tiller)
Matte Gib (Image: Tina Tiller)

BusinessJune 16, 2022

Can you trademark a colour?

Matte Gib (Image: Tina Tiller)
Matte Gib (Image: Tina Tiller)

A former IP lawyer explains the latest twist in the Gib supply crisis.

Aotearoa continues to face a shortage of Gib plasterboard, which is manufactured solely by Winstone Wallboards, a subsidiary of listed building and construction giant Fletcher Building. Fletcher Building controls an estimated 95% of the plasterboard market. Demand is going gangbusters, yet supply remains strained. So housing developer Simplicity Living cancelled its Gib orders and looked overseas for supply, securing high-quality plasterboard from Thailand at a cheaper price. “There’s a cost of building crisis in New Zealand, and the hubris of Fletcher Building is only making it worse. So we’re doing something about it,” said Simplicity Living managing director Shane Brealey.

However, Simplicity Living was told it couldn’t import blue, let alone mauve, green and pink, plasterboard because the colours were trademarked by Fletcher Building. Brealey told Stuff he believed the trademarks were “clear blocking tactics” so the company could protect its monopoly. In response, Fletcher Building chief executive of building products Hamish McBeath said only specific shades of blue, green, mauve and pink had been trademarked, “to simply differentiate Gib plasterboard products”. 

Former IP lawyer Narly Kalupahana explains that trademarks let the public connect words, logos and, in this case, colours, with the manufacturer or source of a product. Think of Nike’s tick logo and its shoes, or McDonald’s golden arches logo. Which begs the question…  

The Spinoff: Can you trademark a colour?

Narly Kalupahana: Colour trademarks are not as controversial as people think. Colours can and do, over time, become trademarks. If you’re driving and you see a green petrol station up ahead, even before you see the name of it, you know what it is. Again, banks – you see a black and yellow bank advertisement, you’re probably going to assume it’s ASB. 

Could an easy workaround be importing blue plasterboard, for example, that is a completely different hue to the one that Fletcher has trademarked?

That comes down to trademark infringement rules. When you’re comparing trademarks, which get quite specific in their registrations, they usually have an image showing the colour, accompanied with either the CMYK [cyan, magenta, yellow and key colour printing format] or the Hex or Pantone colour that matches. If blue plasterboard comes in, and it’s a slightly different shade of blue, the infringement test is: are they the same or similar? And are the goods they relate to the same? If they are not identical, the third part of the test is, is it likely consumers will be deceived or misled by this [shade] into thinking it’s the other blue? It’s hard to know – it’s one of those things where there’s no right or wrong. It depends on at what point the trademark owner reaches out and goes “actually, it’s getting too close for us now”. Realistically, you want to import the most generically beige or brown board you can.

Are Fletcher’s colour trademarks legal and/or ethical?

It’s a really tough one because Fletcher has obviously spent a lot of money on their rights, the trademarks have been in place for 20-odd years without really being controversial at all, and colour trademarks are not unusual or controversial – in fact, they’re pretty damn common. But at times like this, when there’s a massive shortage, certain countries have the ability to override patent rights for the greater good of the country. Now, I can’t think of a way you would do that for trademarks. But it really comes down to whether Fletcher would enforce against someone bringing in coloured plasterboard that was very close to its plasterboard. I suspect Fletcher wouldn’t be happy about it, but it would be brave of it to sue people for that. 

It’s a pretty unenviable position to be in. The world’s gone crazy, Fletcher is short on product, it’s trying to keep up, people want to import. It’s damned if it does and damned if it doesn’t because it’s hurting its own IP by letting all this stuff in. But reputationally, Fletcher will also get hurt if it doesn’t let stuff in. To me, the most commonsense thing would be for Fletcher to say “if we can come to some agreement that if you’re going to bring it in, and it happens to be the same as ours, as long as the quality is up there, we can license it for a temporary period of time”. Might be a nice way around it but then again, it’ll take time. But that would seem to me to be the best PR and keep-the-lawyers-out-of-it solution.

Keep going!
Silky Otter
Silky Otter CEO Neil Lambert says customers want more from movie theatres these days. (Photo: Supplied / Treatment: Archi Banal)

BusinessJune 16, 2022

‘We’ve sold out every session’: How Silky Otter is bucking cinema trends

Silky Otter
Silky Otter CEO Neil Lambert says customers want more from movie theatres these days. (Photo: Supplied / Treatment: Archi Banal)

While some movie theatres have struggled to keep their doors open through the pandemic, one new chain has been busy opening new cinemas.

Neil Lambert knew his timing was terrible. In October of 2019, he opened a brand new two-screen movie complex in the Auckland suburb of Ōrākei, one that came with a simple concept: he and his backers wanted Silky Otter to reimagine cinematic experiences in places where theatres had never been before. 

That meant malls were out, and the suburbs were in. So were downsized screens, smaller theatres, and bespoke food and drink offerings, including a fully staffed kitchen available for those after a catered night out, complete with cocktails, dinner and dessert.

That means popcorn chicken, smoked salmon pizza, sticky date pudding and tap beer delivered to your chair. “A lot of cinemas, especially in the regions, haven’t been updated [in decades],” says Lambert. “We want to [deliver] this better experience.”

Silky Otter
At Silky Otter, cinema-goers can get popcorn chicken, smoked salmon pizzas and sticky date pudding delivered to their chair. (Photo: Supplied)

Five months after opening, the pandemic hit. Cinemas up and down the country shuttered as people turned to streaming services at home to pass the time. Major movie franchises postponed films or sent them directly to streaming. As box office takings dropped by as much as 70%, some theatre chains saw the writing on the wall and closed their doors for good.

But it was too late for Silky Otter. Ōrākei was already open, and Lambert had signed construction deals to expand the chain to the Christchurch suburb of Wigram and Richmond near Nelson. “Everyone was shouting … ‘Maybe you guys should stop,’” he says. “We were too far down, and we believed we could bring it back.”

That belief came from an “unwavering faith” in the industry. Lambert, 47, grew up in an age when blockbusters dominated and going to the movies at the weekend was pretty much a given. Despite the numbers saying otherwise, Lambert refused to believe those glory days were over. He believed cinemas simply had to evolve to cater for customers like him who remembered cinema’s 80s and 90s peak, but now wanted a different experience. “The world has moved on,” says Lambert. “I want a glass of wine, a hospitality experience”.

Jurassic Park
Jurassic Park, one of the biggest films of the 90s.

Silky Otter was designed to provide exactly that. Every auditorium has a maximum of 47 seats, huge leather chairs with plenty of leg room. While Event and Hoyts offer similar premium options like Gold Class, film-goers are often charged $40 or more for that experience. Lambert wanted to offer the same thing for an everyday price. (Tickets at Ōrākei are $22.50, and $19 in Christchurch and Richmond.) Why? “We want you to come more regularly.”

So, despite the bleak box office forecasts, he ploughed on. The Wigram complex opened in Christchurch in July 2021; two weeks later, the country again went into lockdown. Still, he refused to panic. Lambert’s backers and construction partners continued to support him. “I don’t know whether that strengthened belief, or [we had] a little bit of crazy,” he says. “We just kept pushing.”

His resolve hardened watching movie studios discover streaming wasn’t delivering the returns needed to create blockbuster films. “They didn’t make the money that they’d hoped,” he says. “What they learned is that they need cinemas to create a zeitgeist [moment].”

Silky Otter
At Silky Otter, every seat is large and leathery. (Photo: Supplied)

He’s seen cinema’s resurgence first-hand recently, when demand for Top Gun: Maverick forced his Richmond theatre to open early, even though it wasn’t finished. Digital displays were still arriving as fans arrived en masse to check out their suburb’s new cinema, and watch Tom Cruise finally follow-up his 1986 classic.

“We’ve sold out every session. Demand’s been off the charts,” says Lambert. He helped out on the candy bar and watched faces closely as fans emerged from screenings. “They were smiling, saying, ‘The seat, the screen, Tom Cruise flying a jet, it doesn’t get any better.'” It is, he says, “why we do this”.

Yet, he’s not out of the woods just yet. Trend reports suggest cinema’s future may rest on the shoulders of millennials, who have flagging interest in theatre-going. Others suggest tiered pricing models to bolster interest in smaller indie fare might be needed, as well as theatres pivoting to offer other services like TV shows or gaming on the big screen. (Silky Otter offers both.)

There could still too be more twists and turns in the pandemic to play out. Lambert is well aware of all of this. But he remains hopeful. He has to. In late October, he’s opening another four-screen complex in Auckland, behind the Ponsonby Central food court. Then, next year, there are concrete plans to open Silky Otter theatres in Takanini and Queenstown.

Some of that “little bit of crazy” might need to be kept in reserve. But Lambert points out the upcoming pipeline of blockbuster films – including Jurassic World Dominion, Lightyear, Elvis, Minions, Thor and Avatar 2 – as reasons to stay upbeat about cinema’s future. “The pipeline is full,” he says. “I knew movies would come back.”