04 Feb Trademark is the New Black: Protecting Your Signature Brand Color

Does your brand have a signature color? If you are like me, you know your fonts, brand color codes, and brand aesthetic like the back of your hand. Color has a special way of connecting with people. It evokes a feeling, creates a mood, and even can become synonymous with your brand. But, can you protect your brand’s signature color in the same way as you would your brand name or logo?

The answer, like the response to so many legal queries, is: it depends.

First, let’s go back to the beginning. What’s a trademark? A trademark is any symbol, word, or name that identifies a business’ goods or services, as distinct from any others’. Trademark protection is both common law and statutory. Although simply using a symbol, word, or name to identify your business may result in common law trademark ownership, it will rarely allow you to enforce your trademark against infringers. However, you can register your trademarks with the United States Patent and Trademark Office (USPTO) to gain this enforceability for your intellectual property rights.

Colors, unlike words or symbols, are not included in the statutory definition of trademarks. However, there are circumstances when colors have been determined to distinguish a particular brand from any other. In these instances, the USPTO has deemed it appropriate to grant a registered trademark to a brand’s signature color.

The Rule

So far, courts have defined the color rule for trademarks as follows:

To be granted a registered trademark and extend intellectual property protections to a brand’s use of color, the color mark needs to

• Serve an identifying function. This means that consumers would see the color and immediately recognize it as associated with a particular company’s goods or services. This connection between the color and the identification of its source is called the “secondary meaning.”
• Not serve any other purpose. If the color also serves an aesthetic or utilitarian purpose, the color is not an identifier.

When Color Identifiers Work 

As described in point one above, color marks are only enforceable if they serve an identifying purpose. Think about that signature brown on UPS trucks and uniforms or the robin’s egg blue boxes that Tiffany’s jewelry comes in. No one would mistake the goods and services provided by these companies for any other because their color mark has obtained a “secondary meaning,” above and beyond the color itself. Over time and use, these colors have become inextricably associated with the source.

The “secondary meaning” concept can be difficult to establish, especially if the color combination is common. For example, General Mills failed to show that the yellow cereal box that houses Cheerios cereal is eligible for a trademark because the color combination is widely used. Magenta in telecommunications, on the other hand, is unique — hence T-Mobile’s color trademark.  Generally, a “secondary meaning” is shown through a high volume of advertising using the color mark, customer surveys showing that the association between the color and the product is common.

The Fine Line Between Fashion and Function

Let’s talk shoes. You know Christian Louboutin’s signature shoes with the red soles? Sure, they are immediately identifiable as Louboutin’s, so does that mean that the red has gained a “secondary meaning?” Maybe, but that’s not the end of the story. This brings us to point two of the rule outlined above. Identification is the only function a color can serve.

When Yves St. Laurent put a shoe with red soles on the market, Louboutin sued. Louboutin made the argument in court that their signature red sole was identified with their brand and gave the shoes “energy” and made them “engaging.” That ended up being a mistake. The court found in favor of YSL, saying that color can only be trademarked if the color serves to identify the product origin and does not serve any other function. In this case, Louboutin argued (against their own interest) that red soles served a stylistic or aesthetic purpose. The court said stylistic and aesthetic purposes are functional, so no trademark.

How does this apply more broadly? If color indicates flavor, packaging color protects the product inside, colors indicate proper use of the product, color is the natural by-product of the materials used, etc., all would disqualify a color trademark.

How are Colors Defined Before the USPTO?

For the purposes of color marking, a color is not simply identified by its name in a color wheel. Instead, colors are defined by the Pantone Matching System, an ink matching process that defines the exact shade of a color mark. Using a specific and scientific tool to identify color is useful for the USPTO in defining the color and for courts in determining whether a color mark has been infringed upon.

Should You Trademark Your Brand’s Signature Color?

Based on the rule as it stands and the way courts are applying the rule to color trademarks, my guess is probably not. Unless you have been marketing using a signature color for your brand for years, and your products or services are widely recognized by that color, AND that color serves no purpose other than identification of your brand, I don’t recommend it. Want to talk more? Click this link to schedule an appointment.