According to research, up to 90% of quick consumer reviews about products can be based on color alone. Color also plays an important role in brand identity. Coca-Cola is red, Facebook is blue, and so on.
A number of companies have even managed to acquire a trademark and “own” colors that their competitors cannot use.
For example, Tiffany & Co is trademarked for its shade of blue, T-Mobile magenta and UPS are “pullman brown.”
Your company can also try to trademark a color, but it won’t be that easy.
Know the legal requirements
The Lanham Act defines trademarks as “any word, name, symbol, device, or combination thereof” used to “identify and distinguish a range of goods or services from other sources.”
Although colors are not included in that definition, since 1995 they can be trademarked as part of a service or product, provided they comply with four conditions†
- The color should act as a source of brand identification.
- It shouldn’t have a functional purpose – think yellow or orange for safety signs.
- It must show evidence of “secondary significance”. That is, the public has come to associate a color with a particular good or service.
- It does not penalize competitors by influencing cost or quality.
Checking all the boxes can be a challenge, especially when it comes to secondary meaning. General Mills, for example, failed to trademark yellow for his Cheerios box. The court ruled that the color is not a distinguishing element of the brand, as it is often used by other grain companies.
Request the color mark as soon as possible
You can file a trademark application with the US Patent and Trademark Office (USPTO) even before you’ve started using the color commercially or proven its secondary significance.
If the USPTO determines that the color mark is not yet distinctive, but can be, with consistent use in the future, it is registered in the Supplemental Register.
The earlier submission can give you an advantage over competitors who can then use the same color for their products or services.
Once the color mark has been registered in the Supplementary Registry, once it has acquired secondary meaning – usually after at least five years of continuous use – you can reapply for it to be registered in the Main Registry, giving you the ultimate legal protection.
In any case, make sure to define the desired color via the Pantone Matching Systemwhat is the reference table of the court.
Hire a trademark attorney
Navigating the legal waters can be challenging, and it’s better to talk to a professional early on before making a substantial investment.
Trademark attorneys can check whether a color is available for use and whether similar color marks are already in use in the relevant market that could impede registration or lead to lawsuits from competitors.
They can also determine if a color needs to be modified to increase its chances of registration, and develop strategies to shorten the path to secondary meaning.