Yes, US trademark protection can be obtained for a color or color combination, though it is not commonplace.

United Parcel Service, for example, owns brown as a color mark in the transportation and delivery industry (reg. no. 2901090). This doesn’t mean that no other company can use the same brown. But it does mean that no other company in the field of transportation and delivery can use brown—for delivery trucks or other trade dress.

The purpose of trademark protection is to prevent confusion among consumers. When a brown delivery truck pulls up and a driver in a brown uniform gets out, most people assume it’s UPS, not Fedex or another delivery service. The brown color has become so associated in the minds of customers with UPS that it has become a distinguishing mark for the company, though it has not always been so. That’s why early efforts by UPS to register brown as a trademark were not successful. It took time, and aggressive marketing, for brown to acquire meaning for UPS. In trademark law, when a mark acquires meaning that it did not have in the first place, it is said to acquire “secondary meaning.” This acquired secondary meaning has allowed UPS to apply for and receive trademark registration for brown.

Similarly, Owens Corning has been granted several trademark registrations for the color pink for insulation, adhesive tape and other construction-related products (reg. nos. 1439132, 2090588, 2380445, 2380742, 3165001). 3M has a trademark for canary yellow for PostIt notes, and in the telecommunications industry, T Mobile has a trademark for magenta.

To qualify for trademark protection, a color cannot be “functional.” That is, the color cannot be essential to the use or purpose of the product or service. This is why Deere and Company was denied a trademark registration for green in the early 1980s. There are many makers of farm and garden equipment. Should only one of them be allowed to paint their tractors green? It seems reasonable that green, the color most commonly associated with plants, gardens and farms should not be owned exclusively by one farm equipment company. It would seem to be an unfair advantage in the marketplace. On the other hand, specific combinations of green and yellow for specific applications have been registered by Deere. A green tractor body with yellow wheels, for example. Or a green harvester with a yellow stripe. 

 

Links:

Blog article by Susan Perera   The struggle of Deere and Co. to trademark color.

Chinese court awards trademark victory to John Deere  This decision marks the first instance in China of a trademark litigation based on colors. The infringer was a heavy equipment company based in Beijing. Deere was given injunctive relief and awarded 450,000 yuan in damages.

 

A paper by Belinda J. Scrimenti for the American Bar Association Section of Intellectual Property Law’s 27th Annual Intellectual Property Law Conference in Arlington, Virginia. The pdf found on this page contains a short, but fascinating, history of trademark litigation regarding colors.

 

 

 

 

 

 

 

 

 

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