Joshua Julien Brouard
28 August 2023 • 3 min read
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You may think this is a very clear no, but you'd be surprised what you can trademark. The answer here is: yes, there is such a thing as trademark protection of color. But remember that you can't just trademark the color red for a pair of shoes.
There are particular circumstances in which a color can be registered. But we'll get into this. Let's start by going into more detail about what a color trademark is.
As you may have figured, this is a very non-conventional type of trademark. But obviously, you can't just trademark primary colors, so what can you trademark?
Well, you can trademark particular hues or shades of a color. Consider how specific colors make you feel a certain way about a product or service. Tiffany Blue, for example, is famously associated with Tiffany & Co.
But are there any other significant examples worth noting? Let's explore this next:
A lot of companies have color trademarks, and this is because even color can be a distinctive and defining trade of a brand, creating associations in consumer's minds.
Did you know that Cadbury trademarked "Cadbury Purple," only to cede those rights 24 years later? It's a fascinating case, to say the least.
But in a nutshell:
When the brand had initially registered its trademark, it had only done so for chocolate in bar or tablet form. So, in 2004, Cadbury applied for a new trademark to protect a more extensive chocolate range.
But Nestle opposed the application, and regrettably, the UK Court of Appeal rejected the application. But Cadbury's original trademark was also queried, with claims that it was too broad. Looks like the brand "bit off more than it could chew!"
The pink packaging you see with Barbie dolls and related products is distinctive; nobody can argue that. That's because it's not just pink but a unique shade of pink known as "Barbie Pink." Through years of continual use, Mattel has trademark rights to the color.
Interestingly, the company doesn’t yet hold rights to the word mark "Barbie Pink" despite extensive efforts with the United States Patent and Trademark Office (USPTO).
Since 1998, UPS Brown has been a trademarked color. In fact, the company was the third in the United States to trademark a color. And it makes sense: what do you always think of when you see a brown van with a specific shade? UPS, of course!
For color trademark registration, you need to register with the USPTO. According to the Lanham Act, trademarks are: "any word, name, symbol, device, or any combination thereof." It further states that these are used to “identify and distinguish one set of goods or services from other sources.”
Now, you might think you don't see any mention of color there. You'd be right. However, since 1995, four conditions have been set out that allow colors to be trademarked anyway. Provided the following conditions are met, a color can be trademarked:
And even if you aren't currently using it in commerce, you may still be able to register provided that you can motivate that it'll have correct and consistent use in the future and is therefore distinctive.
In this case, it'll be registered on the registry for trademarks that can be registered but aren't yet eligible for color registration. This is known as the Supplemental Register.
As we've seen in Cadbury's case, getting trademark protection for a color is a complex affair. As you can imagine, color marks are pretty challenging to trademark, unlike a name or a logo. And for contrasting sake, nobody considered getting the latter very easy, either!
So yes, you might be able to open a trademark application for a color, but whether it's a good idea for your business depends on cost vs. benefit.
Sounds like it's time to think it over!
To protect a color as a trademark, register it with the USPTO. Just keep in mind that the Trademark Office has strict requirements for registration. Trademark infringement is a simple occurrence when it comes to colors, after all!
Technically, yes, you can invent a color using color combinations. For example, Magenta was created and doesn't naturally exist in nature. It's a color combination created by mixing equal amounts of blue and red light.
Copyrights protect creative works such as musical, dramatic, or artistic works. Trademark protection, conversely, is for a company's logo, name, slogan, or other identifying features, such as a particular color.
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Joshua Julien Brouard
Joshua J. Brouard brings a rich and varied background to his writing endeavors. With a bachelor of commerce degree and a major in law, he possesses an affinity for tackling business-related challenges. His first writing position at a startup proved instrumental in cultivating his robust business acumen, given his integral role in steering the company's expansion. Complementing this is his extensive track record of producing content across diverse domains for various digital marketing agencies.
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