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Color alone may in certain circumstances be trademarked

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our law firm, we help people protect their trade and service marks for brands, slogans, logos and similar ways to uniquely identify the source of a particular product, good or service in the marketplace. We also represent people being accused of infringing or diluting another party's mark. 

One unique kind of mark that can only in narrow circumstances be protected is the color mark. Mental Floss explains that a trademarked color is only protected for use within the particular industry or product type in which it is uniquely used, where it has become associated strongly in the perception of the public.

Or, as the Trademark Manual of Examining Procedure puts it: "[C]olor can function as a mark if it is used in the manner of a trademark or service mark and if it is perceived by the purchasing public to identify and distinguish the good or services on or in connection with which it is used and to indicate their source ... If a color is not functional and is shown to have acquired distinctiveness on or in connection with the applicant's goods or services, it is registrable as a mark." 

The Manual goes on to explain that the burden of showing that color has "acquired distinctiveness is substantial" and that "long use" in itself is not enough. For example, the Trademark Trial and Appeal Board or TTAB found that the yellow on Cheerios' boxes did not have acquired distinctiveness. 

Examples of protected colors

  • Tiffany blue for the jeweler
  • Owens-Corning pink for its insulation
  • Wiffle Ball bat yellow
  • UPS brown
  • 3M canary yellow for Post-It note 

In other trademarks related to human senses, in narrow circumstances, sound or scent can also achieve protected-mark status.

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