Can Colors Be Protected as Trademarks?

Colors help to distinguish products and services. A box of film that is gold and black connotes a Kodak product. A yellow arch indicates McDonald’s food services. 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 Cliffs Notes book series) it is registered as an element of the trademark.

Color protection is a recent development

It was not 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).)

What’s needed to protect a color as a trademark

To obtain 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, as indeed was the case with the Owens-Corning pink fiberglass and the green-gold color for the dry-cleaning pads.

Even fashion designers can get in on the action for single-color protection. The Second Circuit overturned a district court holding that a single color can never serve as a trademark in fashion industry. The court indicated that the company could prevent others from marketing shoes bearing outsoles 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).

It's not always easy ...

Two other cases demonstrate some continuing difficulties in registering and protecting colors as trademarks. Despite thirty years of continuous use of the color blue for its endoscopic probes, a company could not acquire trademark protection. The Third 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). Cigarette maker Lorillard could not convince the TTAB 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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