Colors have more power than we often give them credit for. Color unquestionably plays a significant role in brand awareness and recognition, whether it’s on shoe soles or the packaging of groceries in the supermarket.
Can you trademark a color? Yes, you can legally register a color as a trademark. If a color mark is intended but is not considered distinctive, it must become distinctive through use in order to be accepted for registration.
Continue reading if you want to trademark a color, necessary information is included in this article.
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Is It Possible To Trademark A Color?
Despite the strict requirements, it is possible to register a color as a trademark. The chances of registering a color or color combination are good if they are incredibly unusual or one-of-a-kind in that they don’t consist of primary colors and are intended for a particular target market.
You may be able to name a few significant companies that have trademarked these colors and are leaders in their respective sectors:
- Brown
- Magenta
- Red
- Tiffany blue
- Yellow
A trademark serves the function of indicating to the appropriate group of consumers where the claimed goods or services are made. If, as a consumer, you were able to locate the businesses that have registered the aforementioned colors as trademarks, the owners of those marks have now been positively identified.
A Colored Mark Can’t Do Anything
Like all marks, a color mark cannot be protected as a trademark if it serves a functional purpose, regardless of how distinctively it is used or how much secondary meaning it may have accrued. According to the Supreme Court, a mark that is either necessary to the good or service or has an impact on its price or quality is functional and therefore not protectable. The standard has been improved by lower courts to more broadly inquire as to whether depriving rivals of the ability to use the feature would give them an unfair competitive advantage. If a color denotes a feature of the good or service, such as its size, strength, or capacity, trademark protection may be refused in the case of color marks. On the grounds of functionality, the following color marks have been refused trademark protection:
- Amber-colored mouth wash because the color indicated the flavor;
- Black bottle for soft drinks, because the color keeps out light;
- Color-coded automobile replacement parts, because the colors assist in installation;
- Pink ceramic hip implants were used because of the pink color of the components of the devices (i.e., it was essential to the product);
- Purple sandpaper, because the color signified the grit size of the abrasive;
- A red filter on the end of a flashlight, because it served as a safety and warning light; and
- Yellow and orange telephone booths, as they are more visible to drivers and pedestrians.
How To Describe A Color?
Courts now seem to prefer the use of more scientific methods for defining color shades, such as the Pantone Matching System, which is an ink matching technique consisting of 1,114 colors, even though some may think that certain colors, like Chinese Red or Cobalt Blue, are sufficiently definite. The Pantone Matching System can be used to specify the specific color of a color mark as well as the area of protection surrounding it, for instance, ten shades on either side of the target color. This aids judges and attorneys in determining the likelihood of confusion (i.e., the test for trademark infringement), but also to manufacturers and advertisers to ensure correct and consistent use of the color mark.
Do You Need To Trademark A Color?
In general, it is better to avoid including a specific color in a trademark application unless it is crucial to the mark or serves as its defining characteristic. The most comprehensive level of protection is offered by trademarks that can be used in any color, as the owner will then be able to use the mark in any color and prevent others from doing so. Adding color as a component to a trademark actually limits the owner’s ability to use the mark to that particular shade, making it more challenging to stop rivals from using the mark in other hues.
On the other hand, for some products and services, the target mark may be completely undetectable without the use of a specific color (e.g., women’s high-heel dress shoe soles), using and trademarking a particular color may be a very wise thing to do, as it can make a good or service more distinctive, increase brand awareness, and transform the unprotectable into the protected.
Pros And Cons Of Protecting Your Own Color
There are undoubtedly benefits and drawbacks to requesting trademark protection. On the one hand, unless the product or service is crucial to the mark or acts as its defining characteristic, it is preferable to refrain from staking a claim of exclusivity for a specific color. If not, restricting one’s protection to a single color and allowing others to use similar colors for rival products may actually put one at a disadvantage.
On the other hand, for products or services that would be impossible to identify without a particular color, (such as Christian Louboutin shoes), it might be a good idea to use that color and trademark it. You can submit trademark applications to the U.S. The Patent and Trademark Office
Register Your Trademark As Soon As Possible
It is not necessary for applicants to wait until they can demonstrate secondary meaning or even start using a specific color in commerce before submitting a trademark application for their color mark. In the US, applicants can submit a trademark application. Before the mark has developed distinctiveness, it is registered with the United States Patent and Trademark Office (the “USPTO”). The mark may be registered on the USPTO’s “Supplemental Register,” which is designated for marks that can act as source-identifiers (i.e., as trademarks), but have not yet achieved or shown the secondary meaning necessary to be placed on the “Principal Register, which is only for distinctive trademarks. In the end, an applicant will prefer to have their trademark listed on Principal Register because it offers a higher level of protection.
Even if a color mark is not used right away, registering it can still be advantageous. In contrast to waiting until the mark actually acquires secondary meaning, doing so will give the applicant the advantage of an earlier filing date. This earlier filing date can be extremely advantageous if rival companies later start using the same or similar colors in connection with their own goods or services. If the color mark is already registered on the Supplemental Register, the applicant may submit a new application to register the mark on Principal Register once the mark has acquired secondary meaning, which is typically after at least 5 years of continuous use.
Early on, consult with a trademark lawyer. Before investing a lot of money into using a specific color as a mark in connection with their products or services, brand owners should first consult with a trademark lawyer to ensure the color mark can actually be registered. Trademark attorneys have access to strong, thorough research tools that can determine whether a color mark is available for use and whether any identical color marks are already being used in the relevant market that could present barriers to registration or even lawsuits from rivals. As well as offering advice on whether a color’s intended use can be protected, whether it needs to be altered to improve the likelihood of registration, and how to create shortcuts to secondary meaning, trademark attorneys can also help. As with any trademark, hiring a trademark attorney early on is much more cost-effective than waiting until issues arise and changes to one’s brand are required.
The Bottom Line
Because there is a public interest in not monopolizing the availability of colors for use by other traders or businesses, registering a trademark color is challenging.
However, it would be wise to file for protection as soon as possible if the color is crucial to your brand.
Read More: Chinese Business Etiquette
