How to Trademark a Color | How to Achieve TM Protection

A company can literally own a color. Seriously. It may seem ridiculous at first glance, but companies have been trademarking colors for decades. Colors are used by virtually every brand on the planet! You might be wondering what gives one company the right to claim a given color belongs to them? It’s no easy task to trademark a color, though it is possible. Particular colors and color combos are able to obtain trademark protection under specific circumstances. 

In order to trademark a color, the applicant must show that the color functions to identify the brand in question. And, that color can’t just be utilitarian or decorative in terms of purpose. 

To make the pursuit of trademarking a color even more complicated, proof of “secondary meaning” is also required. The United States Patent and Trademark Office (USPTO) can be so confusing! Basically, a color can be trademarked if the consuming public associates the color with your brand. That’s the secondary meaning. Advertising is perhaps the most effective method to prove secondary meaning. That may not be surprising, since we’re all inundated with it every day. What the customer does over time (usually a long time), consciously or otherwise, matters. If the consumer associates a color with a product or service, that’s a big deal! It will have a serious influence on the trademark application. Things like consumer surveys can also be used to show the secondary meaning of a color.

UPS: A Well-Known Example of How to Trademark a Color

UPS, one of the biggest and most recognizable delivery services in the world, is a prime example of color trademarking. You may remember their advertising campaign that ran from 2002 to 2010. That’s where the slogan “What can brown do for you?” first appeared. The brown color of their trucks and uniforms is synonymous with the brand itself. And for that reason, UPS was allowed to claim a type of ownership of this exact shade of brown. It’s known as “Pullman brown.” Pretty much anyone who sees this brown color on a truck or delivery service will immediately associate it with UPS – and therein lies the secondary meaning. We see the brown, we think UPS. The company was able to successfully trademark the Pullman brown color in 1998. Since then, this has stood as a firm precedent for color trademark cases. 

Now, just because a company everyone knows uses a certain color doesn’t mean they will be able to trademark that color. Take General Mills, the cereal company. You probably ate Cheerios as a kid or fed Cheerios to your child when they were young. What color is the box? Yellow. General Mills has used yellow for its Cheerios cereal boxes dating back to 1945. Holy cereal that’s a long time! Well, unfortunately for the cereal makers, they were unable to trademark that shade of yellow. Why?! Simply because if a particular color or combination of colors are already commonly used for a certain market of goods or services, an individual company will face a struggle against the USPTO when it comes to proving secondary meaning.

Secondary Meaning & Other Considerations

What if a brand applies for a trademark for a color that isn’t commonly used in their category? The chances of proving secondary meaning are drastically improved. As we mentioned earlier, advertising plays a huge role in trademarking a color! Applicants who can show ample evidence of a particular color association with their brand through advertising will be able to convince the USPTO of their legitimate claim to that color. This is no easy task! 

Several other recognizable trademark-protected color marks are T-Mobile’s magenta, Tiffany’s tealish-blue, Louboutin’s red, and Friskars’ orange. Notably, the pink color of Owens-Corning fiberglass insulation gave way to a major shift in trademarking colors. As a result of tough competition in the fiberglass insulation space in the 1950s, Owens-Corning decided to set their product apart. How? By changing the tan color of their product, which was the standard, to a pink color. Then, for about three decades, the brand used the slogan “Think Pink” and licensed Pink Panther as a mascot to advertise their insulation. In the year 1985, Owens-Corning entered into a five-year-long legal process to trademark the single color pink they used. They were successful. This was the first time any company in America was granted a trademark for a single color. Fascinating, isn’t it?!  

The Shade of Color Is Key!

Another aspect of color trademarking we noted is that a color mark can’t be protected if it serves a utilitarian or decorative purpose. What’s that mean?! Let’s say a company has a particular color shade that isn’t widely used among competitors in the same product or service market. Let’s also say that they are able to prove secondary meaning. That’s just not enough for the USPTO to approve the trademark if the color is part of the function or decoration of the goods or service. Another factor taken into consideration by the USPTO is if the exclusive right to use that color unfairly places competitors at a disadvantage.

So, you need secondary meaning, you can’t put your competitors at a disadvantage by forcing them to affect the quality of their product or service, and the color can’t serve a purpose that is functional. In a sense, if anyone wants to trademark a color, they should try to pick a color that is arbitrary. If the color is somehow deemed essential to the product or service in any way, you won’t be able to trademark it. 

Examples of color trademarks that were denied protection on the basis of function are purple sandpaper – the color represented the size of the grit; black bottles for soda – the color functions to prevent light from seeping into the drink; amber-colored mouthwash – the color represented the flavor; and pink ceramic hip implants – the color derived from the components themselves, so were seen as essential. 

Do Your Homework! Know As Much As Possible About Trademarking a Color

Anyone who is interested in trademarking a color should enter into the process knowing as much as possible about the difficulty of doing so. It’s not impossible, but you’ll need to do your homework! 

Just like with any other trademark, you need to consider the likelihood of confusion. On that front, the USPTO will scrutinize the color shade in question using various means, including the Pantone Matching System. They will evaluate whether the shade of the color is already protected, if the color shades near the color are protected, and if consumers actually associate the color with the brand itself. 

A color trademark can be obtained, but the claim of ownership of that color will only be successful if the target mark’s distinction rests on that color. Sounds like a riddle, doesn’t it? Remember the example of UPS. Because UPS could prove the distinction of the brown and its secondary meaning, and that it wasn’t essential to their service and didn’t place competitors at a disadvantage, they were granted trademark protection. 

How to Decide Between Trademarking a Color or Logo

Why wouldn’t a brand just trademark their logo, instead of a color? When you trademark a logo in black-and-white, you’ll get protection of the logo regardless of the color variation. The scope of protection is much more broad and more easily obtained. In the event that a company’s goods or services are distinct because of the use of a particular color, then it makes sense to trademark a color or color combo. 

What’s more, you can apply for a color trademark even if you may not be able to prove secondary meaning or before you use the color in commerce. You don’t have to wait for the mark to become distinctive to file an application! The USPTO allows brands to register on the Supplemental Register – this is for marks that aren’t distinctive yet, but which could be if used on a consistent basis over a length of time. Once the mark (color) is source-identifying – associated with the brand by the consuming public – and has provable secondary meaning, then you can apply for it to get on the Principal Register. Early application filing can give companies the advantage when it comes to trademarking a color, even if the mark doesn’t yet have secondary meaning. 

Do you want to trademark a color? Contact our team at Stockman & Poropat, PLLC for a free consultation today! We can help you figure out if filing an application for a color trademark makes sense for your business. Beyond that, if you decide to go forward, we can handle the entire trademark application process on your behalf. If you’ve already determined you’d like to file an application, fill out our File My Trademark page. We look forward to protecting you and your business! 

Up next we will be discussing Opposing a Trademark.