Yes, it can be difficult, but it is possible to trademark a color. There are a number of famous examples including Tiffany blue and the UPS company’s brown. Indeed, there are at least two well-known shades of pink that have been registered as trademarks in the U.S., including a certain color pink — Pantone 210 — associated with fiberglass building insulation held by Owens-Corning and a magenta pink — Pantone Rhodamine Red U — associated with T-Mobile phones. Interestingly, probably the most famous pink associated with a product has NOT been granted trademark registration in the U.S. — the pink often called “Barbie Pink — Pantone 219 C — used by Mattel for its Barbie products of dolls and accessories.

As noted, obtaining trademark registration for a color has a higher bar. First, trademarks must be distinctive to be eligible for registration. The U.S. Trademark Office has held that colors are not distinctive in themselves. As such, there is no automatic registration for a color.

There are two types of distinctiveness: inherent and acquired. Since colors do not have inherent distinctiveness, then, to be registered, a color must obtain “secondary meaning.” And, an applicant to register a color trademark must prove that the secondary meaning exists. That, of course, can happen. It just requires time and effort and constant protection of the color from infringement by others. “Secondary meaning” is something that occurs in the minds of consumers and is defined, basically, as a state of mind where the color has become closely associated with a product or brand in the minds of consumers. Marketing and use over time will create that connection between the color and the product/brand. That is why time and effort are required when considering the registration of a color trademark.

In addition to distinctiveness, a color trademark registration application must also satisfy the requirements of uniquely identifying the source of the product and not be functional. Identifying the commercial source of a particular product is the essential purpose of a trademark. As such, if the color does not serve that purpose, then the color cannot be registered. Note that the “market” can be a narrow market for consumers. Since no other building insulation was colored, the color pink served to uniquely identify the insulation sold by Owen-Corning.

The color also cannot be functional, which generally has two parts: it does not make the product easier to use or less costly to make. Again, using pink fiberglass insulation as our example, we can intuitively see that adding the color pink does not make the insulation work better, easier to install, or anything else functional. Further, adding the color does not make the product less expensive to manufacture. As such, the Owens-Corning pink passed the “not functional” test.

There is one final possible barrier to registering a color trademark: the monopoly problem. Trademarks, by their nature create tiny monopolies. Certain words, phrases, logos, designs, and other things can only be used by certain commercial firms and companies. In theory, over enough time, with enough trademarks creating enough little monopolies, trade, and commerce will be entirely destroyed because everyone will be able to sue everyone else for infringement. This is obviously fantastical, but there really IS a limited number of colors that consumers will be able to associate with products and brands. As such, the U.S. Trademark Offices DOES take a longer and more searching look at applications to register color trademarks.

Contact the Trademark Attorneys at Revision Legal

For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

The Functionality Doctrine: The Most Common Barrier to Color Trademark Registration

The functionality doctrine is the most frequently litigated ground for refusing color trademark registration. Under Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) — the Supreme Court’s landmark ruling establishing that color alone can function as a trademark — a color is functional if it is “essential to the use or purpose of the article” or if exclusive use of the color would “put competitors at a significant non-reputation-related disadvantage.” The Court applied these standards directly from Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982).

Functional colors are denied trademark protection regardless of how much secondary meaning they have acquired. The public policy rationale is straightforward: if a color serves a utilitarian purpose — signaling a warning, indicating a safety standard, communicating a physical property of the product — then granting one company exclusive trademark rights in that color would impair competitors’ ability to compete effectively. Courts have found, for example, that the yellow color of school buses, the orange color of traffic cones, and the red color of certain pharmaceutical capsules are functional and therefore not protectable as trademarks.

Building Secondary Meaning: What the Evidence Must Show

Since color lacks inherent distinctiveness, an applicant must prove acquired distinctiveness — what trademark law calls “secondary meaning” — to obtain registration. Secondary meaning exists when, in the minds of the consuming public, the primary significance of the color is as an indicator of the source of the goods, rather than as a feature of the goods themselves.

The USPTO and courts look at several categories of evidence to establish secondary meaning for a color mark:

• Length and exclusivity of use. How long has the applicant used the color in commerce, and has the use been exclusive? The Owens Corning pink insulation registration — Reg. No. 1,439,460 — was based on decades of exclusive use of the color in a market where no other product used that color. Long, exclusive use is the single most persuasive factor.
• Advertising expenditures and media coverage. Substantial advertising dollars spent prominently featuring the color as an identifier of source — rather than as incidental background — help establish secondary meaning. T-Mobile’s aggressive promotion of its magenta brand identity across national advertising campaigns was central to its successful trademark registrations.
• Consumer surveys. Direct evidence from consumer surveys showing that a significant percentage of the relevant consuming public associates the color with a single source is powerful evidence of secondary meaning. Survey methodology and statistical reliability will be examined closely by Examining Attorneys and by courts.
• Intentional copying by competitors. Evidence that competitors have deliberately copied the applicant’s color — presumably because they believed consumers associated the color with the applicant’s brand — can support an inference of secondary meaning.

The Spectrum of Color Marks and Famous Examples

A handful of color trademarks have achieved genuinely iconic status and illustrate the range of contexts in which color marks are viable:

• Tiffany Blue (Pantone 1837) — Tiffany & Co. has used this particular shade of robin’s-egg blue on its packaging since 1845 and holds multiple trademark registrations for the color in connection with jewelry, packaging, and retail store services. The color has become one of the most recognized brand identifiers in the world.
• UPS Brown — UPS has used its distinctive brown on delivery vehicles, uniforms, and packaging for over a century and holds trademark registrations for the color. UPS’s famous “What can Brown do for you?” advertising campaign was specifically designed to build awareness of the color as a brand identifier.
• Christian Louboutin Red Sole — The Second Circuit upheld the distinctiveness of the red outsole on high-fashion women’s shoes in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., 696 F.3d 206 (2d Cir. 2012), finding that the red sole had acquired secondary meaning in the luxury footwear market. The court did require a contrast requirement — the red sole must contrast with the upper of the shoe.
• John Deere Green and Yellow — Deere & Company holds trademark registrations for the distinctive green and yellow color combination used on its agricultural and construction equipment, based on decades of exclusive, continuous use.

Strategic Considerations for Pursuing Color Trademark Protection

Not every brand has the resources of Tiffany or UPS, but businesses of any size can take strategic steps to build toward color trademark protection:

• Select and standardize early. Choose a specific Pantone or other standardized color identifier and use it consistently across all branding materials. Inconsistent use of slightly different shades undermines secondary meaning claims.
• Document use from the beginning. Keep dated records of every instance of the color’s prominent use in marketing, packaging, signage, and product design. This record will be essential if a registration is contested.
• Use the color prominently as a source identifier. Feature the color in advertising in a way that associates it specifically with your brand, not just as background or incidental decoration. The more the color functions as a brand identifier in your marketing, the stronger the secondary meaning claim.
• Police infringement actively. Failure to challenge competitors who adopt the same or similar color can undermine secondary meaning by showing that the color is not uniquely associated with your brand in the market.

Contact the Trademark Attorneys at Revision Legal

Obtaining color trademark registration requires a sophisticated legal strategy developed over years of consistent brand building. The experienced Trademark Attorneys at Revision Legal advise businesses on color trademark strategy, registration applications, and enforcement. Contact us through the form on this page or call (855) 473-8474.