Trademarks are not only for protecting names, logos or designs. You can protect shapes, scents and, yes, colours. It is possible to trademark colours – the specific hues and shades associated with your products or brand.
Colours went to the US courts in 1995. In this case, the petitioner had used a special shade of green gold colour on its dry-cleaning press pads since 1985 and when the defendant, a rival company, started using the same colour for its own press pads, the petitioner filed a trademark infringement claim. The petitioner initially lost because the court ruled that trademark could not be obtained for a colour alone.
However, the US Supreme Court, reversing this decision, held that a colour itself was registrable if it met the ordinary requirements to register a trademark. Justice Stephen Breyer noted that “color alone, at least sometimes, can meet the basic legal requirements for use as a trademark. It can act as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function.”
Some may argue that trademarking a colour alone, and effectively preventing the use of that colour by competitors, may be a broad application of the law considering colours are finite property and may not be a sufficiently distinguishable element especially in certain industries where particular colours have reputational connotations.
For context, trademarks are any word, name, symbol or device or any combination thereof “capable of distinguishing the goods or services” of one person from those of another. Over the years, notably trademarks include shapes (the coca cola bottle) and even sounds. There is no reason this is not extendable to colours. The key point is that the mark, or colour in this case, is being used or intended to be used to identify and distinguish the brand from others or to indicate the source of the products. This protection also extends to marks that are normally not used for trademark purposes but have gained secondary meaning. For example, the use of the colour red on the soles of shoes over a period could indicate that the shoes are from a particular brand/source, and thus protected as a trademark (think Louboutins).
Many brands have gone on to trademark their own colours, from the Tiffany blue (Pantone 1837 | #81D8D0) to Mattel’s Barbie pink (Pantone 219C | #DA1884) and UPS’ brown (Pantone UPS Brown 0607298 | #330000). Others have gained secondary meaning protection, like Louboutin’s red sole heels, or “red bottoms”, which have become quite distinctive. It is also possible to trademark the name of the colour associated with the brand.
Note that while you may be able to trademark a colour, you cannot own it outrightly to the exclusion of everyone else. Your trademarked colour is limited to your industry, product or the services you provide and serves only to distinguish you from competitors. Take Tiffany Blue for example, the luxury jewellery company, Tiffany & Co (colloquially known as Tiffany’s), has trademarked this shade of blue for its jewellery boxes. While a jewellery company that packages its jewellery in a Tiffany blue coloured box will be guilty of trademark infringement, it is very unlikely that a bank using the same colour in its logo is infringing on the Tiffany Blue trademark. Even within the same industry, there may be some exceptions. For example, Louboutin’s red sole mark is protected only in relation to a red lacquered outsole contrasting with the remainder of the shoe. Simply put, there is no infringement of this trademark where a red sole is used on a monochromatic red shoe. The requirements and exceptions differ by jurisdictions.
As a brand, creative or service provider, colours are an important source of brand ethos and identification, and a lot of thought goes into deciding on what colour is best suited to represent the brand, service or product. That being the case, it is important to have some understanding of the trademark laws of your location. As you go through the process, always keep in mind that you will either create a valuable trademark of your own or create a costly infringement claim.
For more information on our Intellectual Property Desk, kindly reach out to our team of lawyers at Centurion Law Group:
Oneyka Cindy Ojogbo-Oneyka.email@example.com
Timilehin Elizabeth Owolabi- Elizabeth.firstname.lastname@example.org
Author: Entertainment, Sports and IP Desk at Centurion Law Group