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