Cognate's Trademark Blog

Article: Trademarking Colours

An interesting article in IP watchdog about the trademarking of colours..


Michael Bernet writes….Trademarks are defined by the Lanham Act as “any word, name, symbol, or device, or any combination thereof” that is used to “identify and distinguish” one’s goods or services from those of other sources.  While colors are not included within the statutory definition of trademarks, and were traditionally barred from obtaining trademark protection, since 1995, singular colors and color combinations can be trademarked as part of a product, package or service, if, like any other trademark, they

(1) serve a sourceidentification function, and

(2) do not serve a merely decorative or utilitarian purpose.

Examples of protectable color marks include: red soles for women’s high-heel dress shoes, where the rest of the shoe is not also red (Louboutin); pink fiberglass insulation (Owens-Corning); red knobs on cooking appliances (Wolf); light blue for jewelry boxes (Tiffany); brown for parcel delivery trucks and uniforms (UPS); magenta for telecommunications services (T-Mobile); and orange for scissor handles (Fiskars).

Color marks require proof of “secondary meaning.” In addition to the criteria listed above, which apply to all trademarks, a color can only be trademarked in connection with a particular good or service if, like “merely descriptive” marks (which are not “inherently distinctive” and therefore do not immediately qualify for trademark protection), it has achieved “secondary meaning.” That is, a color can be trademarked in connection with a particular good or service if, through the use of the color over time as applied to a particular good or service, the public has come to associate that color with a particular source.


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