Should Your Business Trademark A Color?

Should Your Business Trad…

Brand recognition goes beyond a recognizable word, phrase or logo. The color of a product or service can be as important and, in some instances, even more important.

Colors have been increasingly used as trademarks in the marketplace, as they can provide a very powerful advantage over competitors.

For example, the color “pink” is one of the most valuable assets of Owens Corning as it provides them with a competitive advantage through brand recognition, greater market share, and ultimately increased revenue.

For example, where a consumer is looking to buy building insulation, the consumer may choose pink insulation over competing products because the consumer has bought pink insulation before and thus the brand connotes an image of quality to the consumer while the consumer is unsure of the quality of competing products. Further, even if the consumer has never used pink insulation before, Owens Corning has built up its “pink” brand over time and this is also recognized by the consumer.

What does it take to trademark a color?

First, the color cannot be “functional” in any respect in the industry in which it is used. Below are some examples of product colors that have been denied trademark protection based on functionality:

  • Black bottle for soft drink: functional as keeping out light and keeping consumer from seeing contents.
  • Blue nitrogen fertilizer: functional because users of fertilizer and the scientific community use the color blue to designate nitrogen and hence there is a competitive need to dye nitrogen fertilizer the color blue.
  • Orange markings on medical feeding tubes for newborns: functional to indicate enteral use only to prevent misconnections by medical personnel.
  • White handle for professional cutlery: functional because it assists in determining cleanliness of the handle.

If the color does not serve any functional purpose, an Applicant must prove that the color of its goods or services has acquired “secondary meaning”, i.e., consumers have come to recognize the color as a trademark which identifies the source of the goods or services. This is typically shown by length, degree, and exclusivity of use.

An Applicant should not wait until they can prove “secondary meaning” before filing a trademark application. A trademark application can be filed seeking registration on the “Supplemental Register,” which is reserved for marks that are capable of serving as source-identifiers (i.e., as trademarks), but have not yet achieved secondary meaning. Once the color has achieved secondary meaning, which is typically after at least 5 years of continuous use, the Applicant can seek registration on the Principal Register.

If color is vital to your brand and you wish to stop others from using similar colors on similar products or services, then federal trademark protection should be pursued.

If you have questions, or would like more information, we would be happy to speak with you.

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