Can A Color Be A Trademark?

Among the most interesting classes of possible trademarks are color trademarks.  In its seminal 1995 decision in Qualitex Co. v. Jacobsen Products Co., 514 US 162, the United States Supreme Court held that a color could be a protectable trademark where the color has acquired what is known in trademark law parlance as “secondary meaning” (which simply means that the color distinguishes one brand from others and indicates the source of a particular product or service).

Over the years, several well-known colors have successfully attained protected trademark status.  For example, most consumers are familiar with the distinctive light blue color used to distinguish the products sold by Tiffany’s.  Likewise, due to a very clever marketing campaign by Corning using the Pink Panther character, the color pink has become a protectable trademark for Corning’s insulation and other building products.  And most consumers also are familiar with the brown color that serves as UPS’ trademark for transportation and delivery services and the yellow color that serves as 3M’s trademark for Post-It notes and like products.

Two recent matters highlight how valuable and powerful color trademarks can be.  In the recent decision of the Second Circuit Court of Appeals out of New York, the court found that the distinctive red lacquered color used by Christian Louboutin on the soles of its shoes was a protectable trademark.  This was a major victory for the fashion industry and all businesses that use a color as a trademark to distinguish their products and services.

A lawsuit recently filed by Rawlings Sporting Goods Company against Wilson Sporting Goods Company illustrates an interesting application of the color trademark law.  Although most baseball fans probably do not realize it, Rawlings owns a trademark registration for the mark “Rawlings Gold Glove” award (which is the formal, official name of the award).  Wilson gave a Wilson-brand baseball glove with metallic gold-colored webbing, stitching and lettering to Brandon Phillips, who endorses Wilson products, in honor of Gold Gloves he has won.  Rawlings contends the glove with the gold coloring infringes its Gold Glove trademark and sued Wilson in federal court in St. Louis.  This case presents an interesting question whether a word mark featuring a color word (i.e. gold) can be infringed by a product that features the color itself.  Should be an interesting one!

As seen, color trademarks can present interesting (and challenging) issues regarding protection, use and infringement.  A business that plans to use a color trademark would be well-advised to consult with experienced trademark counsel to consider and address such issues.

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