A trademark can be nearly anything that serves as a source identifier, including the color of products
Almost anything that serves as a source identifier, i.e. it allows consumers to know who manufactured a product or advertised a service, can receive common law trademark rights and be a registered trademark at the United States Patent and Trademark Office (USPTO). Courts have ruled that the color of a product or part of a product can function as a source identifier and can therefore receive trademark protections in common law and be registered at the USPTO. There are some additional requirements to receive trademark protection for the color of a product than traditional trademarks such as word marks or logos.
One of the most commonly cited color trademarks is the color pink for home insulation, which is a registered trademark owned by Owens Corning. Above is their trademark registration as seen on the USPTO TESS database and the most recent specimen showing the pink insulation being used in commerce, i.e. being installed in a home.
Trademark Distinctiveness and Secondary Meaning
In addition to all the standard requirements to receive trademark rights, colors face a few more hurdles before being protected by trademark law. In particular, color trademarks will be refused trademark protection for not being distinctive unless the owner can prove the color in relation to their goods or services has acquired distinctiveness. Acquired distinctiveness is the concept that the color indicates to consumers what company manufactured the product rather than merely be aesthetically pleasing. In order to show a color trademark has acquired distinctiveness, the trademark owner must prove the color of the product has a secondary meaning, i.e. it indicates to consumers who is selling the product.
In order to prove secondary meaning for color trademarks, trademark owners must show the color allows consumers to identify the producer of the product. To do this, the trademark owner must submit evidence that they exclusively used the color on the product and that a substantial number of consumers identify the manufacturer based on the color of the product. Generally, surveys conducted asking relevant consumers if they identify the color of the product to a particular company or brand will be most relevant to a court’s determination if the color has acquired secondary meaning. What the exact number or percent of relevant consumers that identify the producer based on a product’s color is not set in stone. Other relevant evidence to show a color has acquired secondary meaning includes any media attention, sales and popularity of the product, and no evidence of any other company using the color.
Louboutin trademark registration for red soles on high heels, as seen on the USPTO TESS database. There is some litigation in the European Union about whether colors can receive trademark protection, but in the U.S. there is no controversy and color trademarks are here to stay.
In addition to proving the color of a product has acquired distinctiveness in order obtain trademark rights, the trademark owner must also show that the color is not functional under a utilitarian functionality analysis. Utilitarian functionality weighs whether the feature of a product that someone seeks to protect under trademark law is necessary to the functioning of the product. In some cases, product colors do serve an important function for the product. For example, the orange of traffic cones serves an important function because it makes them more visible to drivers.
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