We commonly think of a company’s name, design or logo as a trademark or service mark. The company uses the name or logo to indicate to the consuming public the source of the products or services being offered. But what about color?
Color marks are marks that consist solely of one or more colors used on particular objects. For marks used in connection with goods or products, the color may cover the entire surface of the goods, only a portion of the goods, or on all or part of the packaging for the goods.
Many companies have successfully obtained trademark protection for a single color or combination of colors for their particular products or services. Good examples include the United Parcel Service’s registration for the color brown for transportation and delivery services. Tiffany & Co. has multiple registrations for a particular color of blue used on bags, boxes, catalogue covers, and the top face of the fastener used on, as a container for, or in connection with fragrance products, tableware, jewelry, clothing, retail store services, and the various other products and services offered by Tiffany & Co.
3M has a registration for the color yellow for use on telephone maintenance instrument and Post-it® notes (they also own the mark Post-it®). Owens Corning has a number of registrations for the color pink used with masking tape, insulation, and other products used in the building and construction industry. And let’s not forget John Deere’s rights to the colors green and yellow in association with its line of products.
The first question when considering whether you are entitled to protecting color is whether you are actually using the color in a trademark manner – to indicate the source of your products or services. The registrability of a color mark depends on the manner in which the mark is used in commerce.
When the color is used in an arbitrary fashion, it is usually perceived as an ornamental feature, or said another way, nothing more than interior decoration, and not registrable. If, on the other hand, through use, the color mark is perceived by the consuming public to identify and distinguish goods in connection with which it is used and to indicate source, it is entitled to protection. For example, while shopping you see a line of riding lawn mowers of various colors, is there any doubt as to the source of the green and yellow ones?
Color can be a very compelling trademark and valuable business asset. Selecting trademarks and planning marketing strategy and campaigns is critical for any business. The explosion of social media as well as changes in traditional advertising and marketing methods has created opportunity for developing more unique and nontraditional approaches that can provide business with a competitive edge.
Promoting non-traditional trademarks such as color, or other unique source identifiers (such as sounds, scents, flavor, product shapes, and online motion marks) may give you a more unique and fresh method to attract and entice a wider audience.
If you are wondering if your brand is eligible for a trademark, I’d be happy to have a conversation with you. Click here to schedule a time to chat.
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