Can You Trademark a Color? A Guide to Color Trademarks

What do Tiffany & Co., John Deere, and T-Mobile have in common? They’ve all successfully turned a specific color into a core part of their brand identity—an essential aspect of their brand’s visual identity—and legally protected it. This powerful form of brand recognition is made possible through color trademarks. For businesses looking to build an unforgettable brand, understanding how to secure and protect a color can be a game-changer. Color plays a crucial role in branding and can lead to instant recognition, helping brands stand out in a crowded marketplace.

Trademark law exists to protect the elements that make a brand unique, preventing competitors from causing consumer confusion. While we often think of logos and brand names, color itself can be a protected asset. Brands use color as a key element of their branding strategy to reinforce their identity and market position. The Lanham Act, the primary federal trademark statute in the United States, allows for the registration of colors as trademarks, provided they meet specific criteria. This guide will walk you through the essentials of color trademarks, covering the legal requirements, the strategic benefits of protecting your brand’s signature hue, and how they contribute to instant recognition in the marketplace.

The Basics of Color Trademarks

A color trademark is a specific shade or combination of colors, also known as color marks, that a business uses to identify its products or services. When registered, it grants the owner exclusive rights to use that particular shade or color combinations for a particular type of product or industry. This legal protection is a powerful tool to prevent competitors from using a similar shade that could mislead consumers or dilute your brand identity.

Think about Owens-Corning. The company successfully trademarked the color pink for its fiberglass insulation. Now, when a consumer sees pink insulation, they immediately associate it with the Owens-Corning brand. This instant brand recognition is the ultimate goal. Similarly, T-Mobile’s distinctive magenta has become synonymous with its telecommunications services.

Another example is Post-it notes, which are widely recognized for their original canary yellow color. This distinctive color mark sets them apart in the stationery market. These examples show how a single color can become a valuable piece of intellectual property. The United States Patent and Trademark Office (USPTO) is the agency responsible for reviewing and registering these marks, including applications for color marks that cover both single colors and color combinations. However, obtaining their approval isn’t a simple process.

Understanding color trademarks is essential for any brand considering color as a trademark. You can’t just pick a color and claim it as your own. To qualify for trademark protection, a color must acquire “secondary meaning.” This legal concept is the cornerstone of color trademark law. Secondary meaning is achieved when consumers associate a specific color with a particular source, the color to immediately identify the brand or company behind the goods, rather than seeing it as merely decorative.

So, how does a brand prove it has established secondary meaning?

• Consistent and Exclusive Use: The brand must demonstrate that it has used the color extensively and consistently over a significant period.
• Marketing and Advertising: Substantial investment in marketing that highlights the color can serve as strong evidence. Think of UPS’s “What can Brown do for you?” campaign.
• Consumer Recognition: Surveys and testimonials can demonstrate that a significant portion of the public associates the color directly with the brand.

The journey to acquiring secondary meaning can be long and requires a dedicated strategy. Working with a trademark attorney can be invaluable in gathering the necessary evidence and building a strong case for the USPTO. The Supreme Court’s landmark decision in Qualitex Co. v. Jacobson Products Co., Inc. solidified this principle, ruling that a color can be trademarked as long as it has acquired secondary meaning, is associated with a particular source, and is not “functional.”

Once a color has acquired secondary meaning, the next step is to secure formal trademark protection. This protection gives a brand the exclusive right to use the color, or a combination thereof—such as colors, words, symbols, or devices—within its specific industry, preventing others from using it in a way that could cause confusion.

To receive trademark protection, a color must meet two key criteria:

1. It must have acquired secondary meaning. As discussed, this shows that the color identifies the brand.
2. It must be non-functional. This means the color cannot serve a utilitarian or functional purpose. For example, the green color of a traffic light is considered functional because it signals “go.” Likewise, a company couldn’t trademark the color black for boat motors because it’s a common and functional color for that product. If a color is considered functional, it cannot be trademarked. Only non-functional color can be trademarked, and the USPTO will evaluate whether the color serves a functional purpose.

For instance, in the landmark Qualitex v. Jacobson case, the Supreme Court held that the color green used on dry cleaning press pads could be trademarked because it was a non-functional color and had acquired secondary meaning. Additionally, colors used on delivery trucks can be trademarked if they serve as source identifiers and are uniquely associated with a particular brand.

After a successful application, the color mark is added to the USPTO’s principal register, a public database of all registered trademarks. This registration serves as an official notice of ownership and is a critical tool for enforcing your rights through legal action, like cease-and-desist letters or lawsuits.

Applying  with the USPTO to trademark a color requires careful preparation and substantial evidence. Here’s a simplified overview of the process:

1. Gather Evidence: Collect proof of the color’s secondary meaning. This includes marketing materials, sales figures, evidence of the length and exclusivity of use, and consumer surveys.
2. File the Application: The application must include a drawing of the mark, a written description of the color, and a statement specifying where and how the color is used on the product or in connection with the service. It is crucial to specify the particular shade of the color, often using a standardized system such as Pantone, to ensure legal clarity and consistency.
3. Demonstrate Non-Functionality: You must prove that the color is not essential to the use or purpose of the product and does not affect its cost or quality.

For example, General Mills faced significant challenges in trademarking the yellow color of its Cheerios cereal boxes, illustrating the difficulty of establishing secondary meaning for a widely used color.

The cost of trademarking a color can vary widely depending on the application’s complexity and attorney fees. However, the benefits—including exclusive rights, enhanced brand recognition (such as when trademarking a color like yellow), and long-term intellectual property protection—often far outweigh the initial investment. It is important to note that while trademarking a distinctive color can boost brand recognition, it may also face legal hurdles, especially if the color is commonly used in the market. A trademark attorney can help navigate this complex process and increase the likelihood of a successful registration.

Registering a color trademark is just the first step. A proactive color protection strategy is essential to maintain your rights and protect your brand identity. It is also important to safeguard your signature colors, as these play a crucial role in establishing a strong visual brand identity and enhancing brand recognition.

• Monitor the Marketplace: Regularly monitor the market for unauthorized use of your trademarked color by competitors. Also, watch for unauthorized use of other colors that may be confusingly similar to your trademarked color, as this can dilute your rights and cause confusion.
• Enforce Your Rights: If you find an infringement, take swift action. This can range from sending a cease-and-desist letter to filing a lawsuit.
• Maintain Your Registration: Trademark registrations must be maintained through periodic filings with the USPTO to keep them active.
• Consider International Protection: If your business operates globally, consider registering your color trademark in other countries to prevent international infringement.

Developing a comprehensive strategy with a trademark attorney will ensure your brand’s visual identity remains protected from legal challenges and competitive threats.

Expanding your brand beyond national borders brings new opportunities—and new challenges when it comes to trademark protection for your signature color. While U.S. trademark law allows for the registration of a particular color or color combination as a trademark, the rules can differ significantly in other countries. Understanding these differences is crucial for any business seeking global brand recognition and robust intellectual property protection.

In many jurisdictions, color trademarks are recognized. Still, the standards for registration and enforcement can be much stricter than in the United States. Some countries require even more substantial evidence that a particular color has acquired distinctiveness and is closely associated with a particular brand. Others may not allow color trademark protection at all, or may only permit it for a combination of colors rather than a single shade.

Securing international color trademark protection typically means filing separate applications in each country where you seek coverage, as there is no single global trademark registration. However, international treaties like the Madrid Protocol can streamline the process, allowing brand owners to file a single application that covers multiple countries. Even so, each country’s trademark office will review the application according to its own laws and standards.

Because intellectual property law varies so widely, it’s essential to work with experienced trademark attorneys in each target market. They can help you navigate local regulations, gather the necessary evidence, and develop a protection strategy tailored to each jurisdiction. Ongoing monitoring for unauthorized use of your color trademark in international markets is also key to preventing trademark infringement and maintaining your exclusive rights.

Ultimately, protecting your brand’s visual identity on a global scale requires careful planning, a deep understanding of international trademark law, and a proactive approach to enforcement. By investing in international color trademark protection, you can strengthen your brand’s presence worldwide and prevent competitors from capitalizing on your hard-earned brand identification.

Color trademarks represent a sophisticated form of intellectual property that can provide a significant competitive advantage. By transforming a specific shade into a legally protected brand asset, companies like Tiffany & Co., Owens-Corning, Cadbury Purple, John Deere Green, Pullman Brown, and Robin’s Egg Blue have built powerful, instantly recognizable brand identities. For example, jewelry boxes from Tiffany & Co. use the distinctive robin’s egg blue color to create a strong brand association. The first company to successfully trademark a color set a legal precedent, paving the way for others to protect their signature colors. The path to securing a color trademark requires demonstrating secondary meaning and non-functionality, but the payoff can be immense. It is also crucial to protect against similar shades to maintain the distinctiveness and legal strength of your color trademark.

For any business looking to create a lasting and defensible brand, exploring the possibility of color trademark protection is a strategic move. By understanding the legal requirements and committing to a long-term protection strategy, you can ensure your brand’s signature color remains uniquely yours.

Looking to Protect Your Intellectual Property?

Please contact Arlen Olsen at Schmeiser, Olsen & Watts LLP at aolsen@iplawusa.com.

About the Author

Mr. Olsen, a former adjunct professor of intellectual property law, has over 30 years of experience in all aspects of intellectual property law. Mr. Olsen is a founding Partner of Schmeiser, Olsen & Watts LLP and a former United States Patent Examiner. Mr. Olsen has prosecuted numerous patents that have been litigated and received damages of over 60 million dollars. Additional activities include teaching seminars, appearing as a guest lecturer on intellectual property matters for corporations and educational institutions, and evaluating and consulting with clients regarding the scope, enforcement, and protection of intellectual property rights.