Brief Fact Summary. A company registered a color as a trademark.
Synopsis of Rule of Law. There is no objection to the use of color alone as a trademark, when that color has attained a secondary meaning and therefore identifies and distinguishes a particular brand.
The language of the Act and the basic underlying principles of trademark law seem to include color in the realm of what can qualify as a trademark.
A color is also capable of satisfying the requirement that a person use or intend to use the mark to identify and distinguish the goods. Over time, customers may come to treat a particular color as signifying a brand to the extent that it develops a secondary meaning.
There is no objection to the use of color alone as a trademark, when that color has attained a secondary meaning and therefore identifies and distinguishes a particular brand. It is the source-distinguishing ability of a mark, and not its status as a color, that permits it to provide a financial gain to a producer and to provide a distinguishing feature for customers.
There is no objection to the use of color as a mark under the functionality doctrine of trademark law. This doctrine prevents trademark law from inhibiting legitimate competition by allowing a producer to control a useful product feature. A patent may be given for a limited time over new designs or functions, but after it expires, competitors are free to use the innovation. A product feature is functional if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage. Sometimes color does not play an essential role in the product’s use or purpose and does not affect cost or quality, so the doctrine of functionality does not create an absolute bar to the use of color alone as a mark.
So, color can sometimes meet the basic requirements for use as a trademark. It can be a symbol that distinguishes a company’s goods and identifies their source, without serving any other significant function.
When a color serves as a trademark, other colors will be available for similar use by competitors. If colors become scarce, the functionality doctrine is available to prevent problems.
Discussion. The Lanham Act is broadly construed and so can include within its scope almost anything. The court focuses on what the color represents and how it is viewed by consumers, rather than on its status as a color.