Trademark a Color?
Can you trademark a color as part of your brand?
Trademarks help consumers quickly and reliably identify the source of the product they are purchasing. Thus, a business owner might want to improve brand recognition by using color marks to protect the colors associated with their brands against use by competitors. For example,
if you receive jewelry in a robin egg blue box, you know it’s from Tiffanys.
If you see a Brown box truck delivering packages, you know the delivery truck is a UPS truck, even without seeing the logo.
People can use “almost anything” to convey meaning, including colors. Indeed, the United States Patent and Trademark Office (USPTO) has allowed registering sounds, shapes, and scents as trademarks. Still, color is generally seen as merely a decorative property of goods, so it is possible but not easy to obtain protection. The Court believes words and design marks are more direct and effective for consumer identification, so the burden of proving acquired distinctiveness through color is higher.
Color marks are never inherently distinctive and cannot be registered on the Principal Register without a showing of acquired distinctiveness under §2(f) of the Trademark Act, 15 U.S.C. §1052(f).
Recently, Dimarzio, Inc, sought to register the color cream for electric guitar sound pickups for guitars. However, the USPTO examining attorney refused to issue the Trademark because the color mark was not distinctive, and the evidence of acquired distinctiveness was insufficient to demonstrate that the color mark had become characteristic of the goods. On appeal, the Trademark Trial and Appeal Board (TTAB) found that the following factors weighed against a determination that the color mark had acquired distinctiveness:
declarations from purchasers of the goods that failed to demonstrate that the average customer would recognize the color cream as a source identifier;
evidence of third-party use of the color cream on guitar pickups that did not establish that the applicant’s use was substantially exclusive;
the Applicant’s advertising of its goods that failed to include “look-for” advertising or reference to the color cream, mainly where multiple colors were offered in connection with the goods; and
evidence of sales of applicant’s goods that did not indicate how they compared to competitors’ sales.
Ultimately, the TTAB found that Dimarzio did not meet its burden of proving that the color cream had acquired distinctiveness for electronic sound pickups for guitars. They didn’t get the trademark.
Trademark lawyers keep up with the latest case law and decisions from TTAB, so you don’t have to. Hiring an experienced trademark attorney can help you avoid the cost (and time!) of filing for a trademark by warning you of any risks in your application before you file it. Experienced trademark lawyers will search the USPTO trademark database and other sources to advise you on any risk of objection or rejection. A trademark attorney will respond to any correspondence from the USPTO so that your trademarks have the best chance of approval.
Amanda Bynum, owner and founder of AJB Lawfirm, LLC, is a trademark and small business attorney in Tucson, Arizona. She can help you protect your intellectual property, including trademarks.
Sources: In re Dimarzio, Inc., Serial No. 87213400, 2021 U.S.P.Q.2d 1191 (T.T.A.B. Dec. 3, 2021); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 115 S. Ct. 1300 (1995)
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