Color Me Trademark! Can You Really Trademark A Color?
It isn’t as straightforward as yes and no. A specific color cannot be trademarked. However, as of 1995, the United States Patent and Trademark Office, declared a color and color combinations can be trademarked as a part of a product or service as long as they (like any other trademark) serve as a source of identification function and not just for a decorative or utilitarian purpose. (USPTO)
According to Owens Corning’s newsroom, almost a decade prior to this declaration from the USPTO, Owens Corning was the first company in the United States to successfully trademark a color. On May 12, 1987, they secured their pink fiberglass insulation color as it is a key identifier of the company’s insulation line.
Traditional insulation is a yellow/brown color. When Owens Corning production factory accidentally added red dye to their insulation in production, they received a pink color as their final result. They decided to make that mistake as a permanent additive to their production assembly as it set their product apart and did not affect the quality of their product. In 1980 they partnered with MGM to use The Pink Panther as their mascot. With their trademarked slogan “Think Pink”, they built their brand around the color, pink. Consumers would ask contractors to use the pink stuff or the Pink Panther brand… This customization of coloring, slogan, and partnership with The Pink Panther turned this pink insulation into a source of identification function… which initiated the trademark filing of Owen Corning’s for the color pink.
With the USPTO granting the trademark to Owens Corning, the courts decided a company can trademark a color in very direct and specific circumstances. The Company must show that the color:
- Distinguishes the company from its competitors.
- Doesn’t affect the product’s cost or quality.
- Doesn’t serve a functional purpose.
Proving all three points isn’t easy, that is why so few companies have had success in trademarking a single color. Trademarking color combinations have been easier to achieve, for instance, McDonald’s has trademarked its red and yellow color scheme when they accompany its logos. Owens Corning was the groundbreaker in registering a trademark for its distinctive pink color. As the first company to trademark a color, Owens Corning has also been on the frontline of legal battles over trademark law. According to Law360, in 2011, for instance, the company filed a suit against Kingspan Insulation, a UK company that sold pink-colored insulation and building materials. Owens Corning has been associated with a single color ever since a mistake turned its insulation pink. Branding strategically and securing their brand along the way has made Owens Corning’s product a household name and request.
Shutter stock Several other companies have followed in OC’s footsteps by trademarking their color.
Tiffany & Co. trademarked their signature Robin Eggs blue in 1998, to prevent low-quality competitors from luring away existing customers.
Christian Louboutin (LV) was able to sue Yves St. Laurent (YSL) when YSL created a shoe that also had red bottoms. Louis Vuitton put their proverbial foot down and thanks to their trademark of the red soles, they were successful in their suit stating YSL was infringing on its famous red sole.
Same for Target, they have dibs on red in the discount retailer sphere, and it’s known for opposing anyone who tries to use its signature color in their branding. But Coca-Cola, which shares the bright fire engine red, is safe – the brands aren’t direct competitors.
Home Depot has legal rights over the orange used in their signs and advertising. Despite other companies using this color, Home Depot only takes issue with competitors using their branding of their trademark color and bold stencil font.
Much like McDonlad’s, John Deer trademarked their signature color combination of green and yellow. John Deer cannot trademark green by itself as green is seen as a “functional” color used to symbolize vegetation. However, the signature color combination of a particular green and yellow can be protected.
This is why when you file any trademark it is important to understand which class within the USPTO to file under and how using similar colors or branding to another company can co-exist if they are in different classes! When these companies file suit to another it is usually for infringement. As you cannot represent yourself purposefully of mistakenly as another brand by infringing on their likeliness. There are so many ways to secure your brand. How do you plan on securing your brand this year?
