Yes, your business can register a color mark — here’s how

According to research, up to 90% of consumers’ instant product judgments may be based on color alone. Color also plays an important role in brand identity. Coca-Cola is red, Facebook is blue, etc.

A number of companies have actually managed to trademark and “own” colors that their competitors cannot use.

For example, Tiffany & Co trademarked its shade of blue, T-Mobile magenta, and UPS its “pullman brown.”

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Your company can also attempt to trademark a color, but it won’t be that easy.

Know the legal requirements

The Lanham Act defines trademarks as “any word, name, symbol, device, or any combination thereof” that is used to “identify and distinguish a set of goods or services from other sources”.

Although colors are not included in this definition, since 1995 they can be trademarked as part of a service or product, provided they meet four conditions:

  1. The color should function as a source of brand identification.
  2. It doesn’t have to have a functional purpose – think yellow or orange for safety signs.
  3. It must show evidence of “secondary significance”. In other words, the public has come to associate a color with a particular good or service.
  4. It does not disadvantage competitors by affecting cost or quality.

Checking all the boxes can be tricky, especially when it comes to secondary meaning. General Mills, for example, did not register a yellow mark for its Cheerios box. The court ruled that the color is not a distinctive feature of the mark, as it is commonly used by other grain companies.

Ask for the color mark as soon as possible

You can file a trademark application with the United States Patent and Trademark Office (USPTO), even before you have started using the color in commerce or proven its secondary meaning.

If the USPTO determines that the color mark is not yet distinctive, but can be, if used consistently in the future, it will be listed on the Supplementary Register.

Filing earlier could give you an edge over competitors who might later use the same color for their products or services.

If the color mark is registered on the Supplementary Register, once it has achieved a secondary meaning – usually after at least five years of continuous use – you can reapply to register it on the Main Register, which which gives you the ultimate legal protection.

In any case, be sure to define the desired color thanks to the Pantone Matching System, which is the court’s preferred reference table.

Hire a trademark attorney

Navigating legal waters can be tricky, and it’s best to speak with a professional early on, before making a substantial investment.

Trademark attorneys can check to see if a color is available and if there are similar color marks already in use in the relevant market that could prevent registration or result in lawsuits from competitors.

They can also determine if a color needs to be changed to increase the likelihood of registration and develop strategies to shorten the path to the secondary direction.

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