Viewer Questions: More About Color As A Trademark

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An earlier video prompted some questions about color as a trademark. Chris Lutz (tagged in this post) asked:
I thought there was more to it than that like an element of potential confusion among the consumer of two businesses with similar products/services. So, there's not that many colors in the spectrum and millions of businesses that have been started. How is it that every color imaginable isn't trademarked yet?

This is a two-part question, and I’ll answer part 2 first: How is it that every color imaginable isn’t yet registered as a trademark?

Well, I guess because not that many applications for registration have been submitted.

Using color as a trademark requires that the color be shown to be distinctive; it has to be identifiable with the brand. The applicant has to demonstrate to the trademark examiner that the color is distinctive of the applicants’ goods. This is done by a showing of years of use of the color in conjunction with the goods or services,
Section 45 of the Lanham Act defines as a "trademark" "any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others."

In the event of a challenge to the registrability of a trademark color, the courts are charged with fairly deciding the dispute, based on the facts and circumstances of the case. In some cases, the registration of color has been refused; Campbell's Soup was refused registration of red and white on its soup labels. A number of factors are considered, including the number of available color combinations, the number of competitors, the nature of the goods and services, and marketing practices in the applicant’s industry. There is often no “bright line” test for what is or is not allowed, so courts must look at previous cases and the spirit of the Lanham Act to decide cases.
Now, as to part one: [With respect to trademark infringement] is there “more to it than an element of potential confusion among the consumer of two businesses [offering] similar products and services? Sometimes, yes.

When a famous mark is potentially infringed, the analysis goes something like this: What is the likelihood that a consumer will be confused, given the pervasive nature of goods produced by famous companies? When a company is famous, it tends to lend its name to all manner of goods and services that are related -- sometimes only tangentially -- to the goods for which they are best known.

For example, Tiffany & Co. is famous for manufacturing jewelry. How many people know that they also manufacture or lend the Tiffany name and distinctive robins-egg blue color to handbags, writing instruments, perfume, and restaurant services? The tendency of brands to expand their offerings far afield affords famous marks more leeway in the marketplace to monopolize a certain color, especially if that color is restricted to a specific shade. Unlike Campbell’s attempt to register the color red for soup, Tiffany & Co. has been careful to register a very specific shade of blue -- Pantone 1837, created just for them -- as a trademark rather than the more generic “blue,” which likely would not have been registrable.

Again, it’s important to look at a number of factors when deciding if a particular mark is registrable. Such an analysis is never undertaken in the abstract, but always in view of the marketplace and the reasonable expectations and experiences of both the applicant, the competitors, and the consumer. This is why it’s always a good idea to consult with a trademark attorney before attempting to register your very important brands. Experience and knowledge of the law is important in this very specialized field.

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