We just wrapped up our COLOR. themed open house event for the spring. It seems fitting, then, to write about what trademark law says about protecting the colors of a brand.
In one of my recent blog posts found here, I talked about how fashion designers can use trademarks to protect some elements of their designs. As an example, I looked at the Louboutin case where the red-colored sole was found to be a protectable feature of the designer’s iconic shoes. Recently though, the United States Patent & Trademark Office (the “USPTO”) denied a trademark application that sought to protect a unique shade of purple. Let’s see why!
Colors are generally protectable, but there are some pretty tough hurdles to clear first. Once the color has been approved by the USPTO, it is called a “color mark.” The color has to pass the following two tests before it can be approved as a color mark:
- it can’t be functional – this means that the color can’t be part of how the product works. Think about a yellow “Caution” sign. That yellow means something and plays a critical role in what the sign is trying to accomplish, so it would be considered functional.
- it has to have “secondary meaning” – this means that the color has to be distinctive enough to identify the good it is associated with.
For further discussion on these requirements and the trademark application process for colors, you can visit this website: https://www.quora.com/How-did-UPS-trademark-the-color-brown-What-are-the-details-of-this-trademark.
Some examples of colors that have been approved as color marks are: UPS brown, Louboutin red, and Tiffany blue – anyone who sees that shade of blue immediately thinks of Tiffany’s and its fine jewelry. Each of these three clearly identifies its brand. Check out some more examples of well-known color marks here: http://mentalfloss.com/article/27396/9-trademarked-colors.
The Prince Purple
Other brands haven’t been so lucky in getting colors protected. Paisley Park is the business enterprise of the late pop icon, Prince. Towards the end of last year, Paisley Park applied for a trademark for a unique shade of purple created by Pantone called “Love Symbol #2” in honor of the music star. After all, it was his signature color.
The USPTO denied the application because this particular shade of purple was not indicative of the Paisley Park brand. The USPTO noted that purple has been used by many other artists in the music industry and thus, is not distinctive of Paisley Park or Prince. When consumers see this Pantone purple, they have to automatically associate it with Paisley Park and Prince. That isn’t the case yet, but Paisley Park has another chance to try to prove the color’s distinctiveness to the USPTO.
We’ll see what happens!
About the Author
Madeleine Shroyer is our firm’s rising expert on fashion and non-profit law. During her law school career at SMU, Madeleine interned at a boutique law firm, which taught her the importance of teamwork and effective communication.
Learn more about Madeleine Schroyer HERE.