Executive Intellectual Property Bulletin

Trademarks in Color

On March 28, 1995, the U.S. Supreme Court held that federal trademark law "permits the registration of a trademark that consists, purely and simply, of a color." The Court permitted a federal trademark registration for the color green-gold as a trademark for press pads used in dry cleaning. In explaining the basis for its decision, the Supreme Court found that "both the language of the [federal trademark statute] and the basic underlying principles of trademark law would seem to include color within the universe of things that can qualify as a trademark." The Court, however, limited its approval of color trademarks to only those colors that have attained "secondary meaning" and therefore identify and distinguish a particular brand and thus indicate its "source." As a practical matter, this means that a color will likely not qualify to be treated as a trademark unless consumers come to associate that color with a particular manufacturer or source of goods (or services). Another example of color functioning as a trademark is the color pink for insulation, owned by Owens-Corning, Inc.

What is the likely impact of this decision on manufacturers and resellers? It is anticipated that this decision will result in the increased registration and enforcement of color marks. In particular, it is likely that there will be an increased number of suits filed against manufacturers and resellers of "look-alike" products. If a specific color is used to distinguish a company's products from a competitor's products, it will be worth exploring whether or not a federal trademark registration is available for the color. For a new product to be identified by a specific color, we recommend that an infringement clearance search be conducted to be sure that the color does not infringe any color trademarks held by third parties.

If you would like a copy of the U.S. Supreme Court's color trademark decision or if you would like any further information relating to any matter, please contact any of the attorneys at Schwegman, Lundberg & Woessner, P.A. at 612-339-0331 or by facsimile at 612-339-3061.