Can Colors be Protected Trademarks?
Under the right circumstance, colors can be protected trademarks. Why? Well, a trademark can be anything used in commerce to associate a product or service with the source or origin of that product or service. So, if you can build enough brand awareness around your color(s), it’s possible to gain enforceable trademark protection in your color(s). The key step in gaining such trademark protection for a color is demonstrating that the color has acquired distinctiveness in the marketplace as applied to your products or services. Put another way, you must prove that when consumers see this color used in connection with your products or services, they immediately see you as the origin of those products or services. You can appreciate, then, that if you succeed in obtaining trademark protection on a color, that protection will be narrowly applied to only the products or services on which the color or colors have acquired such distinctiveness. Examples would be the UPS brown or the Owens Corning Pink. Now, it’s worth mentioning two things in connection with your efforts to secure trademark protection on colors. First, unlike some word-based or image-based trademarks, colors are never considered to be inherently distinctive. In other words, some word-based trademarks like Xerox and Kodak were considered inherently distinctive. In practice, this meant that the owners of those trademarks were not compelled to prove their trademarks had acquired distinctiveness in the marketplace. Because of the uniqueness of those words in combination with the associated products and services, they were considered inherently distinctive. This is never the case with colors. If you intend to pursue trademark protection for your colors as they are applied to your products or services, you must prove that you have acquired distinctiveness in the marketplace. Second, the color cannot be related to the function of the product. Why? Well, essentially, function is the province of patents, a form of intellectual property with limited duration. The problem with permitting trademark protection for functional aspects of a product is that owners of those trademarks would be able to maintain perpetual exclusivity. In other words, since trademarks protection can last forever (by continuing to use the trademark in commerce and continuing to pay maintenance fees every ten years), by permitting trademark protection on the functional aspects of a product, that trademark owner would effectively have perpetual patent protection. With this in mind, you can appreciate why there is a functional prohibition on color trademarks. Simply, if the color relates to functional aspects of a product, that color is not available for trademark protection in connection with that product.