Can you trademark a color?

 

colorsplash3

 

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. multiple2

 

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.

 

 

 

 

 

 

 

 

 

clipart by Freepik.com

 

 

A trademark registration is not always about protecting a logo design.

trademark-symbol

Often, in the  US, a trademark registration is for the wording only rather than the design of a logo. The terminology used for this type of mark on a US Trademark application is “standard character mark.”

A registration for the design of a logo would be a separate application. What is the difference between the  two types of registration? Which is better?

Standard Character Mark

A registration for a standard character mark covers all variations of the wording that you want to protect. It covers the wording in any letter style and any color or size. That means it covers the wording if it’s part of a logo design, too. In other words, a standard character registration is more comprehensive than a registration that is for only the design of a logo, because it covers all forms of the wording (including its use as a domain name).

A design mark

On the other hand, a trademark registration for the design of a logo applies only to the exact design as it appears in the drawing that you send with the application. So, what happens if you want to change the design later, or add or remove a word? You will have a problem, because you will be required to apply for a new trademark registration. In effect, then, a registration for a standard character mark may be stronger, more versatile, than a registration for a design mark.

Why not register the wording of a logo as a trademark and its design as a copyright? Because, so often, a logo does not qualify for copyright protection in the US.  [see related post:  Can logos receive copyright protection?]

Consequently, many trademarks are protected by two trademark registrations, one for the wording and one for the design. You may even see two registrations just for the design (one in color and one in black and white). If you want to apply for only one trademark registration to save money, an attorney may advise registering a standard character mark rather than a design mark. There are more infringements related to words than to designs. Sometimes, though, a particular word mark may be considered “weak,” so that protecting the design may take on greater importance. Again, the advice of a trademark attorney can be valuable.

The ideal, of course, is to protect both wording and design by separate registrations, though it’s more costly.

 

Links:

USPAT page explaining character mark versus designed mark   This link is to a government page and has some illustrations.

Law 4 Small Business   This post is by attorney David Ferrance from 2015. Clear and succinct explanation of character mark versus design mark.

Words or Logo or Both?   A more involved explanation from the blog of attorney Eric Waltmire.

 

Letter embellishment—a little goes a long way

 

A decorative or embellished letter treatment, what printers may call a “display typeface,” can add a splash of personality. It can help support a design theme or help create a mood. But it can easily be overused and become visually tiring, especially if it is less legible, as is often true of display type or embellished letters. The guiding principle should be: a little goes a long way. Use such treatments sparingly.

heavy outline shade

Here, a shade/outline has been artlessly applied to all the lettering on this layout for magnetic vehicle signs, rendering them virtually unreadable. The shade color competes with the lettering for attention because of its high contrast with the background. Additionally the heaviness of the shade and the tight letter spacing allow the interletter spaces to be filled by the shade. This obliterates the letter silhouettes and seriously hurts letter recognition from any but the closest viewing distance.

Heavy-handed embellishment like this is rarely successful. Perhaps it can be made to work on a single, simple word at a very large size with adequate letter spacing or a color adjustment. But it doesn’t work in this case. And combined with the use of all upper case, which further decreases legibility, and the clumsily oversized phone number, the overall effect is clearly a fail. From only twenty feet these signs appear to be a blurred indecipherable mass. If you are guessing that this design was heavily influenced by a micromanaging customer, you are right.

Sign customers—you can’t live with them and you can’t shoot them.

Trade name vs Trademark. What’s the difference?

 question mark

What is a trade name? Is it protected like a trademark? Can another business use the same trade name as yours?

What is a trade name?

In the US, a trade name is the name of a business or company, whether the business is a sole proprietorship, a partnership or a corporation. A trade name is, generally, not protectable as a trademark unless it is actually used to distinguish and identify the goods or services of a company.

Can a name be both a trade name and a trademark? Yes. Many are. For example, the name Sony, when used on a company letterhead, functions as a trade name. When it is used on TV sets sold in stores it is a trademark.

Can a trade name be protected? Yes, it may be protected under state statutes or principles of unfair competition. But it is not protected as a trademark unless it identifies goods or services.

Is it possible for a company to have a trade name that they cannot use as a trademark? Yes, because it is possible for a chosen trade name to be an infringement of an existing trademark already owned by another company. But what if the trade name I choose for my company has been registered through a government agency, and the registration was approved? How could it be an infringement of someone else’s trademark? Moreover, if the name is already owned as a trademark by another company, how could the state possibly approve it for my trade name? The possibility of this happening highlights a common myth regarding “trade name clearance.” The myth is that trade name clearance equals trademark clearance. It doesn’t. They are not the same.

Trade name registration

If I start a business I may use my personal name for the business or I may choose a fictitious name—fictitious because it’s not my real name. This is my business name or commercial name, my trade name, also known as a DBA (Doing Business As) name. I may register this name through the county clerk’s office in the county where I do business or I may register it through the state. Or, I may hire an accountant to incorporate my business and he or she will file my corporate trade name with the state. This filing process often involves a “name clearance” through which the state or local government agency approves my chosen name for the business.

What is the purpose of this name filing with the government? It’s mainly to inform the government, especially those agencies that levy taxes, of the existence of my business. It also can, at least theoretically, prevent me from taking the same name as an existing company, which could be viewed as unfair competition. But this name clearance is by no means exhaustive. Note this comment on the website of Sterne Kessler Goldstein Fox, a law firm in Washington, DC: “The chosen [trade] name is generally accepted by the state agency unless the register already contains a registration for the same name for another company. In general, the agency does not analyze whether a proposed name is similar to a previously registered name prior to registering it as a business name. The agency typically looks only for exact matches within the states registry (and differences in names can be as minor as the use of Corp. versus Inc.). In some cases a state may even allow companies with the same name to register in the state.” [italics added]

By contrast, a trademark search can be far more extensive. A trademark search is not a matter of simply looking for names that are the same, but will look for names that could be confused with each other. That’s why a search will not just look at the names, but will analyze the products or services represented by the names, and how they are sold. The standard for trademark infringement is whether there is a likelihood for confusion. A likelihood of confusion could exist even if the names are not exactly the same. Further, trademarks may actually use the same terms if there is no chance of consumer confusion (for example, Ace hardware and Ace bandages).

Trademark clearance includes checking not only the trademark registry of the US Patent & Trademark Office, but since each state has a trademark registration process, it will also include a search of the trademark registries in all 50 states. If the product or service is to be offered outside the US, a trademark search will include the registries of other countries as well. A thorough search will also include a search of trademarks in the US that may not be registered (trademark rights are acquired through use, not registration).

In understanding the difference between trade names and trademarks, it can be helpful to note that the two terms normally function as different parts of speech: a trade name is a noun, while a trademark is an adjective. For example, Sony Corporation is a trade name when it refers to the company. Coca-Cola Bottling Company is also a trade name. But when used with goods (Sony televisions, Coca-Cola products) these terms are trademarks and function as adjectives.

A designer must also be an editor

looking for gold

“The design process is one of sifting through the less important to find the essential.”—Alex W. White in The Elements of Graphic Design (2002).

What White describes is editing.

Editing a layout for a sign usually means simplifying. It is visual surgery. A removal process. It rarely means adding elements to a composition.

At the beginning of the design process, in consultation with the client, there should be an editing out of all unnecessary and needlessly repetitious elements. The goal is conciseness and clarity. Further editing helps establish a hierarchy of importance. One element must be chosen—a word, a phrase, a graphic—to dominate the layout. This becomes the viewer’s entry point into the composition. This dominant element should be emphasized decisively. Nothing should be allowed to compete with it. Nothing else should be allowed to have equal billing. In the short time that most people spend looking at a sign (in moving traffic, about a second and a half at most), it should be possible for a viewer to recognize and understand this one dominant element.

Unfortunately, the sign world today abounds with overfilled sign design that is simply too much work to read. What is the reaction of most viewers when confronted with busy, crowded sign work?

Well, picture this: If you were served a drink filled to the very coffee05top, what would be your reaction? Would your inclination be to thank your server for trying to give you your money’s worth? Or rather, would you view the overfilled cup as a problem created by someone thoughtless? If a sign appears to be bulging with copy, if the message looks like it will be a chore to read, most readers will not make the effort required to slog through it. They will simply ignore it.

Furthermore, editing a design is more than just eliminating unnecessary verbiage. It means making a layout look organized by injecting white space to create groupings of related elements and to separate elements that are unrelated. Visual dividers and margins make the parts of a layout look accessible and manageable.  Adequate space creates a kind of visual breathing room. It makes a layout look comfortable on a given substrate rather than giving the impression that the message needs the next size larger sign. And if you are not going to increase the size of a sign to gain necessary white space, where is the space to come from to create margins and dividers? Obviously, the elements in the composition must be downsized.  And this is one of the real challenges for a novice sign maker who wishes to improve in layout ability: to progress beyond the viewpoint that negative space is to be feared as ‘wasted space,’ and that everything must be as big as possible. Far from being a waste, white space is the glue that holds everything together. Negative space is every bit as important as the positive. What would an individual letter, say, the letter ‘S,’ look like without the negative space surrounding it and within it? The answer is that it would not look like anything, because it wouldn’t exist.

For the beginning designer, learning to see negative space as a design element, and learning to manipulate it to enhance the positive, is one of the most significant strides he or she can make.

If we are accustomed to ‘filling up all the space,’ it may take real effort to force ourselves to edit crowded-looking design. It can be painful, just like surgery. It means learning a new way to think and see. But it gets easier the more we do it. And the end result is not just sign work that has more eye appeal, but signs that are more readable and that can be scanned and assimilated more quickly.  Generous use of white space can transform mediocre, easily ignored designs into compelling and effective reader magnets.

 

 

Glossary of Terms

This blog entry begins a new category on this blog site that will gradually be added to, though it will be by no means exhaustive.

The sign world has long had a collection of trade terms that are not well known outside the industry. And I have even met sign makers, some having been in business for years, who are not familiar with terms that were once commonplace among sign artists (for example, pounce pattern). And, as the sign business continues to move away from hand lettering and to blend with the printing trade and its related field of typography, terminology is often misunderstood by sign makers not familiar with print jargon. The terms logo and font are two examples of terms commonly misunderstood, or used imprecisely, both inside and outside the sign industry.

At the same time, language is not static. It is a living, breathing animal that is constantly changing. Definitions will continue to evolve.

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Metal printing press letters
Historically, fonts were collections of metal type that were stored in divided drawers or cases. A single font would have included an assortment of letters, punctuation and numbers in a single point size, although larger print shops may have owned multiple fonts of the same size to increase production. Modern-day fonts are software programs loaded onto computers. Font software is protected by copyright law in the US.

FONT  [n.]   Brit. FOUNT   a complete assortment of type of one style and size.

Origin: probably from Middle French fonte, the act of founding or casting, from Vulgar Latin fundita, fem. of funditas, a verbal noun, the past participle of Latin fundere, to found, pour or cast.

A font, or collection of type, was originally made of metal by the process of casting, or founding. The metal was commonly an alloy of lead, tin and antimony. Fonts were stored in print shops in compartmentalized drawers or cases. Type compositors stood in front of the font assortments, selecting type from either the ‘upper case’ (capital letters) or the ‘lower case’ (noncapital letters). Though printing is still accomplished using metal type, the vast majority of printing is now composed with digital type. Fonts are now pieces of software, programs really, that are loaded onto computers to drive printers and other output devices to produce lettering in a particular typeface. An analogy to music can help explain the difference between a typeface and a font: If a typeface is like a song, a font is like an mp3 file. The song is what you hear, but the file is what produces it. Similarly, a typestyle is what you see, while a font is the digital tool that produces it. In practice, the word font is often used without much precision, sometimes interchangeably with the word typeface. As the digital age continues, and the original meaning of the word font fades, the distinction between typeface and font may disappear altogether.—see related post, Sign painters didn’t use fonts

In the US, a font (the software) is protected by copyright, whereas a typestyle (the design) is not. Both the US Congress and the US Copyright Office have made it clear that the design of letters cannot be protected. However, the name of a font may receive trademark protection. —see related post, Is a typestyle protected by copyright?

 

 

 

Does vinyl film have a shelf life?

Rolls of plastic

Yes, it does.

Polyvinyl chloride, or PVC, is the primary resin that makes up the vinyl sheeting used by the sign industry for computer-cut graphics as well as printed decals. The manufacture of vinyl sheet involves the blending of PVC resin with other ingredients, such as UV absorbers, heat stabilizers, pigments, fillers—and plasticizers.

Plasticizers are the reason for vinyl’s shelf life. Or rather, it is due to the phenomenom of “plasticizer migration.”

 

Plasticizers—What are they?

Plasticizers are generally clear liquid components that, when mixed with PVC, soften it, making it flexible, so that it can be formed, welded, etc.

There is an almost bewildering variety of vinyl films used in sign work—with a wide range of quality and cost. Some of the differences in the vinyls are due to the quality level of the raw materials used. The manufacturing process is also a factor. Less expensive vinyls are produced by an extrusion process called calendering, which uses heated rollers to process softened PVC into a thin film. Calendering lends itself to high production and lower manufacturing costs. More expensive vinyls are produced by casting, a process that starts with the PVC as a molten liquid which is then spread out or cast onto a moving web, a flat sheet that carries the layer of vinyl through a series of ovens that evaporate the solvents, leaving behind a thin dry film. Cast films are inherently more stable (they shrink less) and they are more durable. They retain color better and are more UV resistant longer.

The choice of plasticizers has an affect on quality, too. Cast vinyls, generally, are produced with higher grade plasticizers, allowing them to be more flexible and conformable. This allows for better performance over rivets, corrugations and complex curves. These plasticizers are also more stable, not as prone to migration. This is because their molecular weight is greater; the molecular chain is longer, more complex. It makes them more durable.

 

Plasticizer migration

A tech sheet from Arlon (April, 2014), a vinyl manufacturer since 1958, indicates that the reason for vinyl’s limited shelf life is usually contamination of the adhesive by the plasticizer in the PVC. As vinyl ages, the plasticizer “migrates” to the surfaces front and back, and eventually saturates the adhesive, gradually “deadening” it. Adverse storage conditions, such as a hot supplier warehouse, can accelerate plasticizer migration. Also, cheaper vinyls use cheaper plasticizers that are less stable. They transfer to the adhesive more easily. Other vinyls have plasticizers that are more resistant to migration. Adhesives vary, too. Some are more resistant to plasticizer contamination than others.

Not all plastics rely on plasticizers the way PVC does. Most manufactured plasticizers are, in fact, made for PVC products. Vinyl sheeting for sign work may contain as much as 20-25% plasticizer.
Plasticizer migration is a cause of concern in some industries that use PVC extensively. This is because the plasticizer, though necessary, can also become a contaminant.  Examples of areas of concern are the manufacture of PVC products made for food storage and packaging, medical equipment (tubing, bags, etc), and the plastic sheet used as liners in landfills and water treatment plants.