Color and Trademarks
When non-lawyers draft their own trademark applications with the United States Patent and Trademark Office (the “USPTO”), they often wonder whether they should choose a specific color or colors. The question is whether claim over a particular color will somehow increase the likelihood of your mark’s acceptance onto a USPTO register or limit the possibilities of use. To answer this question for yourself, it is important to understand the context of the color option on a trademark application before deciding whether to use it.
The leading case on use of a color is Qualitex Co. v. Jacobson Products Co. and involves the use of a special shade of green-gold coloring on the pads made and sold to dry cleaning firms for use on dry cleaning presses. When the defendant used the color on its pads, plaintiff argued that this was improper, since the green-gold on this particular product served as an identifier to distinguish Qualitex’s goods.
The court agreed with the plaintiff that the color was an identifier. As such, it was in the interest of the marketplace to prevent competitors from using the same color on the same product. This decision furthers the general policy of trademark: preventing others from copying source identifying marks reduces the consumers’ costs in shopping and making purchasing decisions.
But this is not to say that everybody should use color as an identifying mark. I would suggest a claim over color for unique packaging, (e.g., Tiffany’s robin’s-egg blue boxes) or if the color truly separates your product from others (e.g., green ketchup). Otherwise, choice of a specific color will be limiting.
In the instance that you already are using a specific color whenever you use the mark, you may still want to consider claiming it in favor of having flexibility down the road. If you have been using one shade of purple for a decade-now an “incontestable” mark-but switch to using pink, as well, you might be diluting your previous mark, at least insofar as claiming the use of that shade of purple on that specific product. Even worse, if you expand the product to use the entire rainbow, you could be undoing years and years of hard-earned good will by creating confusion among your own consumers.
Therefore, unless you began your application with a specific color in mind, it is probably inadvisable to claim one as your own. Nevertheless, if you still have questions, you should contact a seasoned trademark attorney who can collect all the specific facts of your specific circumstance. This is the only way to get an absolutely accurate response to any legal question.
This article merely gives an overview of some very complicated rules and does not attempt to include all factors and considerations that apply in all instances. It should not be construed as legal advice to your specific problem.