According to research, up to 90% of consumers’ snap judgments made about products can be based on color alone. Color also plays an important role in brand identity. Coca-Cola is red, Facebook’s blue, and so on.
A number of companies have actually succeeded in trademarking and “owning” colors that their competitors can’t use.
For instance, Tiffany & Co has trademarked its shade of blue, T-Mobile magenta, and UPS its “pullman brown.”
Your company can also attempt to trademark a color, but it won’t be that easy.
Know the legal requirements
The Lanham Act defines trademarks as, “any word, name, symbol, device, or any combination thereof” that’s used to, “identify and distinguish one set of goods or services from other sources.”
Although colors aren’t included in that definition, since 1995, they can be trademarked as part of a service or product, providing they meet four conditions:
- The color needs to work as a source of brand identification.
- It must not have a functional purpose — think yellow or orange for safety signs.
- It needs to show proof of “secondary meaning.” That is, the public has come to associate a color with a particular good or service.
- It doesn’t put competitors at a disadvantage by affecting cost or quality.
Ticking all the boxes can prove challenging, especially when it comes to secondary meaning. General Mills, for example, has failed to trademark yellow for its Cheerios box. The court ruled that the color isn’t a distinctive element of the brand, as it’s commonly used by other cereal companies.
Apply for the color trademark ASAP
You can file a trademark application with the US Patent and Trademark Office (USPTO), even before you’ve started using the color in commerce, or proven its secondary meaning.
If the USPTO determines that the color mark isn’t distinctive yet, but can be, if used consistently in the future, it will be registered on the Supplemental Register.
The earlier filing could give you an advantage over competitors who might subsequently use the same color for their products or services.
If the color mark is registered on the Supplemental Register, once it’s achieved secondary meaning — typically after at least five years of continued use — you can reapply to register it on the Principal Register, which gives you the ultimate legal protection.
In any case, make sure to define the desired color through the Pantone Matching System, which is the court’s preferred reference table.
Hire a trademark attorney
Navigating the legal waters can be challenging, and it’s better to speak with a professional early on, before making a substantial investment.
Trademark attorneys can check whether a color is available for use, and whether there are any similar color marks already being used in the relevant market that could impede registration, or result in lawsuits from competitors.
They can also determine if a color should be modified to increase the probability of registration, and develop strategies to shorten the path to secondary meaning.
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