Reuters
April 26, 2024 – A specific color or color combination can be the subject of common law trademark protection and/or federal registration with the U.S. Patent and Trademark Office (“USPTO”) in certain circumstances, though it can be challenging to protect and register a color mark.
Some well-known examples of registered color marks include Tiffany robin’s-egg blue and Christian Louboutin red when contrasting with other colors on shoes, and Mattel owns strong common law rights in Barbie pink. However, in other circumstances, color has been held to be unprotectable, such as General Mills’ yellow for Cheerios packaging and Pepto Bismol’s pink for stomach medication.
As an initial matter, a trademark is a word, phrase, symbol, design, or combination that identifies the source of certain goods or services. However, a color can never be an inherently distinctive and protectable mark. Instead, to obtain protection and/or registration, a trademark owner must show that the specific color has acquired distinctiveness for certain goods or services. This means that the mark must have acquired secondary meaning through consistent and substantially exclusive use over time, high profile usage, extensive advertising, and the like, with the result that the color has become a source identifier and consumers have come to associate it with the owner.
Notable is that even if a color has acquired distinctiveness, that color cannot be protectable or registrable as a mark if it is functional for the product or service to which it is connected.
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