Can you trademark a color in the United States?

Can you trademark a color in the United States?

A trademark is something that indicates the source of goods or services.  When most people think about trademarks, they thick of words and symbols.  But some companies are so closely associated with a single color that it makes sense for the company to trademark the color to prevent consumers from confusing the company’s products with a competitors products painted the same color.  It is possible to gain common law rights to a color as a trademark and register that trademark on the principal register of the United States Patent and Trademark office.

Color marks are marks that consist solely of one or more colors used on particular objects. For marks used in connection with goods, color may be used on the entire surface of the goods, on a portion of the goods, or on all or part of the packaging for the goods. For example, a color trademark might consist of purple used on a salad bowl, pink used on the handle of a shovel, or a blue background and a pink circle used on all or part of a product package.

Color marks are never inherently distinctive.  Because the color marks are never inherently distinctive, it must be shown that the color mark has developed a secondary meaning.  A secondary meaning requires that consumers associate the color mark with the goods or services of the company which wants to register the color mark.  A statement that the mark has been in use a long time is not enough, it must be demonstrated that the color has acquired source-indicating significance in the minds of consumers.

Color marks cannot be registered with the United States Patent and Trademark office, if they are functional.  A color may be functional if it yields a utilitarian or functional advantage, for example, yellow or orange for safety signs.  A color may also be functional if it is more economical to manufacture or use. For example, a color may be a natural by-product of the manufacturing process for the goods. In such a case, appropriation of the color by a single party would place others at a competitive disadvantage by requiring them to alter the manufacturing process.

If a company can demonstrate that their color mark has acquired distinctiveness and the color mark is not functional, than it is likely that the company can register their color mark with the United States Patent Trademark Office.

Some examples of companies that have successfully registered color trademark are:

  • United Postal Service – Brown
  • T-Mobile – Magenta
  • Tiffany & Co. – Blue
  • Target – Red

It should be noted that registering a color mark does not give the mark owner any more power than a normal trademark owner, Target could not claim Coca Cola is infringing on Target’s trademark because the two companies are in different industries.

Some recent cases that show how courts in the United States have treated color marks:

Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., No. 11-3303 (2d Cir. 2013). Louboutin had a trademark for a red soled ladies shoes.  Louboutin sued YSL for selling a show with a red sole.  The 2nd circuit held that Louboutin had a valid trademark on red soles on shoes provided that the rest of the shoe was not red.  The 2nd Circuit based their opinion partly on the fact that Louboutin submitted hundreds of photos of their shoes, with red soles; but only 4 of the pairs of shoes were completely red.

In re General Mills IP Holdings II, LLC Serial No. 86757390 (TTAB 2017). General Mills sells a popular breakfast food called Cheerios in a yellow box.  General Mill’s application to register the color yellow as their trademark was denied by the Trademark Trial and Appeal Board.  The board stated – “[C]ustomers, accustomed to seeing numerous brands from different sources offered in yellow packaging, are unlikely to be conditioned to perceive yellow packaging as an indicator of a unique source,” the panel said, adding: “Rather, they are more likely to view yellow packaging simply as eye-catching ornamentation customarily used for the packaging of breakfast cereals generally.”