The Trademark Color Rainbow
What do UPS, Tiffany, and 3M have in common?
Chocolate brown trucks, robins-egg blue colored jewelry boxes, and canary yellow sticky notes.
Chocolate brown, robins-egg blue, and canary yellow.
Color, color, color is the answer of course!
These are the distinctive colors that these prominent companies use to identify themselves. It may be more apt to say however, that these are the colors that we as consumers have come to identify with these three companies. This is the purpose of a good trademark, i.e. easy consumer recognition. And yes, these precise colors have been trademarked by these companies in connection with the goods and services that they provide – transportation and delivery of personal property by air and motor vehicle, jewelry, and stationery notes containing an adhesive for attachment to surfaces.
But we don’t often think of color as being within the ambit of trademark law. When we think of trademarks, we think of brand names such as UPS, Tiffany, and 3M for example – which are also trademarks by the way. But it turns out that colors may be protected by federal trademark property rights including the exclusive right to use robins-egg blue in connection with insanely expensive jewelry.
The Supreme Court took up a trademark color case back in 1995 in Qualitex Co. v. Jacobson Products Co., 514 U.S., 159, 161. In that case there was a dispute as to whether “a special shade of green-gold color” on dry cleaning press pads could be protected. Id. The court held that in this case, this particular color could be used as a trademark in connection with these pads. Id.
The Court posited, however, that if color could be a functional feature of a good or service, that trademark protection would not be applicable, as there are other forms of intellectual property protection, such as patent law, that exists to protect such features. Id. at 164. The reason behind this “functional doctrine,” is that “if a product’s functional features could be used as trademarks … a monopoly over such features could be obtained … and could be extended forever (because trademarks may be renewed in perpetuity).” Id. at 164-65. The Court then explained functionality as being “essential to the use or purpose of [an] article” or affecting “the cost or quality of [an] article.” Id. For example, a red pill may serve a function as to distinguish between a blue pill, and mean essential difference between facing the truth or being blissfully ignorant, as in “The Matrix.”
Based on the reasoning in Qualitex, the United States Patent and Trademark Office would not likely allow Morpheus to trademark red and blue in connection with mind altering pills because of the function that the colors serve.
The bottom line is that where a color “is not essential to a product’s use or purpose and does not affect cost or quality,” the more likely that the color may protected with a trademark. See, Qualitex, 514 U.S., at 165. Thus, if you have a great business idea, you may want to seriously think about identifying your goods or services with a color that will make an impression and distinguish yourself from the pack. Bubblegum pink, anyone?
(Note. If you would like to see the color trademarks of UPS, Tiffany, and 3M as registered with the United States Patent and Trademark office click here. You can then enter their respective serial numbers (76408109, 75544375, and 75087575) in the search box and click enter to retrieve their statuses.)