Can Colors Be Protected as Trademarks?

Colors help to distinguish products and services in the market. A yellow arch indicates McDonald’s food services. A blue jewelry box tells consumers that the maker is Tiffany's. When color is used with a name or graphic design of a trademark, such as the red lettering and blue star of Converse footwear or the yellow and black coloring of the CliffsNotes study guide series, it can be registered as an element of the trademark with the U.S. Patent and Trademark Office.

Color Protection Is a Recent Legal Development

It wasn't until recently that the United States began to protect combinations of colors or single colors by themselves—that is, without any additional text or graphics.

In the 1980s, Owens-Corning registered the color pink for its fiberglass insulation and, in 1995, the Supreme Court ruled that a manufacturer of dry-cleaning press pads could claim registration for a green-gold color. (Qualitex v. Jacobson Products, 514 U.S. 159 (1995)). Also, a federal appeals court has ruled that a color combination (signifying different tensions in an exercise band) could be protected. (Fabrication Enters. v. Hygenic Corp., 64 F.3d 53 (2d Cir. 1995)).

Now, it has become relatively common for major brands to protect the colors of their marks.

Obtaining Legal Protection for a Color Mark

To obtain trademark protection, the owner of a potential mark for color must establish that, given its use in the marketplace, consumers have come to associate the color with the owner’s products or services. The precise color, and its usage on your mark, must be explained in some detail on your application for a color mark.

Even fashion designers can sometimes claim single-color protection. The U.S. Court of Appeals for the Second Circuit overturned a district court holding that a single color can never serve as a trademark in the fashion industry. Louboutin, the famed shoe company, uses a red-lacquered sole on their shoes that it argued were readily recognizable by customers. The court indicated that the company could prevent others from marketing shoes bearing soles in a shade of red identical (or substantially similar) to plaintiff's red-shoe-sole trademark. (Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., 11-3303-cv (2d Cir. 2012)).

Challenges in Registering Color Marks

Two other cases demonstrate continuing difficulties in registering and protecting colors as trademarks.

  • Despite its 30 years of continuously using the color blue for its endoscopic probes, a company could not acquire trademark protection for that usage. The U.S. Court of Appeals for the Federal Circuit held that that the color was functional when used in connection with an endoscopic probe and further that the company had failed to demonstrate secondary meaning. (ERBE Elektromedizin GMBH v. Canady Technology LLC, 629 F.3d 1278 (Fed. Cir. 2010)). Secondary meaning is the idea of market recognition—in other words, that the relevant consumers recognize your brand based upon their color. Here, the court held that there was no secondary meaning.
  • Cigarette maker Lorillard could not convince the U.S. Patent and Trademark Office that its color combination of orange lettering and green background (as used in connection with its "Newport" brand advertising) was a protectable combination. The biggest hurdle for Lorillard was that the color combination was not used on the packaging or cigarettes, only on advertising, and even in those cases, it was not always consistent. Hence, there was an insufficient demonstration of secondary meaning, despite having sold half a trillion Newport cigarettes. (In re Lorillard Licensing Co., 99 U.S.P.Q.2d 1312 (T.T.A.B. 2011)).

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