by search, up to 90% of consumers’ surprising judgments 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 already succeeded in branding and “owning” colors that their competitors cannot use.
For example, Tiffany & Co. has trademarked the shade of blue, T-Mobile magenta, and UPS as “pullman brown.”
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Your company can also try to brand the color, but it won’t be that easy.
Know the legal requirements
The Lanham’s Law It defines trademarks as “any word, name, symbol, device, or any combination thereof” that is used to “identify and distinguish one group of goods or services from other sources.”
Although colors are not included in this definition, since 1995 they may be trademarked as part of a service or product, provided they meet the Four terms:
- Color should serve as a source for brand identification.
- It should not have a functional purpose – think yellow or orange for security signals.
- Needs to show evidence of ‘secondary meaning’. That is, the public has come to associate a color with a particular good or service.
- Do not put competitors at a disadvantage by affecting cost or quality.
Choosing all the boxes can be tricky, especially when it comes to secondary meaning. General Mills, for example, Failed to put yellow trademark For her Cheerios fund. The court ruled that the color was not a distinguishing element of the brand, as it was in common use by other cereal companies.
Apply for a colorful trademark ASAP
You can file a trademark application with the United States Patent and Trademark Office (USPTO), even before you begin to use the color in commerce, or establish its secondary meaning.
If the USPTO determines that the color mark is not yet distinctive, but could be, if it is used consistently in the future, it will be recorded in the Supplementary Register.
Early registration may give you an advantage over competitors who may use the same color later for their products or services.
If a color mark is registered in the Supplementary Register, once you reach the secondary meaning – usually after at least five years of continuous use – you can re-apply for registration in the main register, which gives you ultimate legal protection.
In any case, be sure to specify the desired color through a file pantone matching systemwhich is the court’s preferred reference table.
Hiring a trademark attorney
Navigating legal waters can be challenging, and it is best to speak with a professional ahead of time, before making a major investment.
A trademark attorney can check if the color is available for use, and whether there are any similar color markings already in use in the relevant market that could hinder registration, or lead to lawsuits from competitors.
They can also determine if color should be modified to increase the likelihood of recording, and devise strategies to shorten the path to secondary meaning.
