Over the past couple of months we have been paying close attention to the controversial court battle of Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., 778 F. 3d (2nd Cir. 2012) where it was finally decided that Louboutin has trademark protection on their red soled shoes when the sole’s color contrasts with the adjoining upper of the shoe and YSL can sell its all red shoe.
This recent battle has sparked up conversation regarding what can be trademarked. When you think of a trademark, what do you think of? Typically what comes to mind are words or company logos, but you can trademark shapes, symbols, sounds, as well as colors.
Trademarking a color allows a company to use a particular color or combination of colors in its own industry. For example, Cadbury cannot sue 3M Company for using the color purple on tape (both companies have respective trademarks for each good, by the way), because they are not selling goods in the same channels of trade. But recently we have seen Cadbury gain rights over Nestle to trademark the color purple for chocolate and chocolate based goods in the United Kingdom because they travel in the same channel of trade.
Let us take a quick look at a few large companies that have trademark protection on colors, and see if you can think of any others that travel in the same channels of trade; bet you cannot.
Orange, owned by Home Depot. Home Depot’s orange trademark covers the color being used as a background for advertising, promotional materials, signage, and labels in 14 different International Classifications covering all of the goods in their store from lawn fertilizers, tools, and building materials to the services consultation in the fields of construction, repair, and maintenance.
Tiffany Blue, owned by Tiffany & Co. In fact, Tiffany & Co. owns three separate trademark registrations for a “shade of blue often referred to as robin’s egg” which covers boxes, bags, and their store catalogs.
Canary Yellow, owned by 3M Company for the Post It Note. Have you ever noticed that the generic brand does not have the same bright color?
Here are a few more, to get your mind thinking:
Burnt Orange, owned by The University of Texas
Brown, owned by UPS
Red, owned by Target
Green and Yellow, owned by John Deere
Magenta, owned by T-Mobile
If you happen to have a color that has become distinctive to your area of trade, then please give our firm a call!