The food and beverage industry has successfully exploited to its advantage the area of non-traditional marks. Color has been an extremely effective branding tool for many businesses. Think about how well recognized colors such as John Deere green, Kodak yellow, or Home Depot orange. For the food and beverage industry, color is a great brand identifier because products are shelved closely together and consumers only take a moment to grab the desired product. Having an easily identifiable packaging color is an instant identifier. Think about the grocery store shelf. From far down the aisle, I can spot the Saratoga Springs brand of spring water with its distinctive blue bottle and Perrier brand with its distinctive green bottle.
A mark can registered for anything that is an indication of the brand (source of the service or product). These can include colors used consistently to identify the brand. To rise to the level of a brand trademark, the color must either be inherently distinctive or have acquired secondary meaning. To be inherently distinctive, the color must be arbitrarily or applied to a product or service and not serve any other perceived functional aspect. To acquire secondary meaning, consumers must associate the particular color used on goods or services as originating from a single company. Put another way, the color scheme alone
triggers the customer’s association with a particular brand.
The U.S. Supreme Court held color may not be protected as a trademark when it is “functional”. There are two types of functionality: “utilitarian” and “aesthetic.” A color is functional under the utilitarian test if it is essential to the use or purpose of the product, or affects the cost or quality of the product. A color is aethestically functional if its exclusive use “would put a competitor at a significant non-reputation-related disadvantage”. If color “act(s) as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function,” it can be protected as a trademark.
For example, in the case of Owens Corning, a pink color mark registered for fibrous glass insulation did not confer a ‘monopoly’ or act as a barrier to entry in the market for other insulation manufacturers. It serves the classical trademark function of indicating the origin of the goods, and thereby protects the public against confusion.
Let’s consider another example, safety gear with a bright yellow color. The yellow in this case has a function – it is identified as a color for alert/caution and is easily seen in low light situations because of the contrast with the environmental colors. In this, it would harm other manufactures of safety gear to give one company a monopoly on the color yellow.
When choosing a color for branding, strong shades of blue and red are areas of the palette crowded with prohibitions. You will want to obtain a trademark search to understand the landscape in your product class and related classes. Existence of a color mark may not prohibit you from using the same or a similar color mark. If a color is registered by one company as a mark, only someone in direct competition with the company is prohibited from using the color in association with the sale of goods listed in the registration, or those so closely related that consumers would be confused and potentially believe the products came from the same source. A company in an unrelated line of goods or services could potentially use the color without infringing on the registered mark.
Conspicuous consumption in the future may extend beyond colors and revolve around brand identifiable proprietary product or packaging design features. This is a great marketing idea for newcomers who want to penetrate the consciousness of the conspicuous consumers and trendsetters around the world. Uniquely identifiable packaging designs and shapes can be protected against unfair competition and copying.
Protecting color as a trademark can be a very powerful advantage if the color has no particular function or meaning in the industry in which it is used. However, in order to claim color as a trademark, the color must be showcased as a source indicator for products or services in its marketing campaigns and advertising materials. Companies that have successfully done this include UPS with its reference to itself as “brown”, Kodak’s reference to the “yellow box,” AstraZeneca’s advertising for its medicine as “the purple pill,” and Owen Corning’s use of the color pink in its advertising to associate it with its pink insulation. This consumer association was no accident. It was the product of careful and clever planning, implementation, and marketing strategy is critical to developing a strong, unique and highly recognized color trademark.
So, how do you know if a color you are using or plan to use in your business can be protected as a trademark to the exclusion of your competitors? Besides confirming the color has not been registered by another company for use with the same or related goods and services, you will want to be sure the color is not “functional” in any respect in the industry in which it is used. Various “functionality” tests have been developed by the courts over time, and some include: whether the color yields utilitarian advantage, whether alternative colors are available, whether advertising touts utilitarian advantages of the color, and whether the particular design color results from a comparatively simple or inexpensive method of manufacture. Functionality can be defined by multiple criteria such as psychological effects on the consumer (symbolism, associations). When a color’s associations relate to the product in a literal or abstract way, this is considered to be functional. For example, green is frequently used in packaging of organic, healthy and natural products because if the association with trees, grass and nature. Blue is used when referring to cold and red when referring to hot. Another example is blue fertilizer (indicating the presence of nitrogen). Colors may also have an aesthetic effects (attractive and effective design) Many color combinations are “pleasing to the eye.” Functional color effects may also include perception of size and weight. For example a black product generally appears smaller than the version in other colors or silver appears more high tech or sterile. Lastly, there are visual effects to make things eye catching or render text more legible.
Promoting non-traditional trademarks such as a color, or other unique source indicators such as sounds, scents, and product shapes, may provide a fresh method to attract and entice a wider audience. To successfully obtain and defend a nontraditional color mark, an applicant should preferably reference a standard color identification systems (such as Pantone). Although it is not essential, such color identification can provide more long lasting clarity as to the colors claimed for protection. Here are some examples of strong coloring branding: