Can you trademark a color?

[pulykamell]

@Billdo

There was significant litigation about this when a Yves Saint Laurent, a competing shoe designer made a shoe that was entirely red, including a red sole. Louboutin sued to enforce its trademark on red soles. YSL argued that in something that is a fashion product like shoes, color is a functional aspect of the product and can’t be trademarked.

The federal appeals court in New York issued an interesting decision. The court held, in essence, that Louboutin’s distinctive mark was a red sole which contrasted with an upper of a different color. Because putting a red sole on a different color shoe was distinctive and not part of the overall fashion of a shoe, it was a protectable trademark. However, when the whole shoe was red, the red sole was part of the overall fashion of the shoe, and it was not subject to trademark protection. In other words YSL was able to sell an entirely red shoe without infringing Louboutin’s trademark, but Louboutin is entitled to trademark protection for a shoe with a red sole only.

Before reading the outcome of the suit, that’s pretty much exactly what I would have opined. What makes Louboutin’s red sole distinctive to me is the fact that it contrasts with the rest of the shoe. An all-red shoe I would not confuse with Louboutin. It’s just an all-red shoe.

[pulykamell]

@CookingWithGas

Where I live, the Fairfax Yellow Cab company paints its cars a color that I can only call orange.

That’s a bit more orange than I usually see them, but it’s interesting to me to see how many Yellow Taxis and “yellow” school buses are actually more orange than yellow (at least to my eyes). Heck, even the “yellow light” on a traffic signal looks more on the orange side of amber to me (I’m defining amber as the color dead center between yellow and orange.)

[Mr_Downtown]

Not sure why we keep wandering in the anecdotal wilderness. The answer is yes.

Single color trademarks are protectable in the U.S. And while no entity can “own” a color in all circumstances, the use by another of a trademarked color that results in customer confusion may result in liability for trademark infringement. Colors primarily identified with a certain purveyor of goods and services—from Tiffany & Co.’s diminutive blue box to the literally football field-sized blue turf of Boise State University’s stadium—are tangible, protectable assets.

The straight dope from the Trademark Manual of Examining Procedure:

[pulykamell]

@Mr_Downtown

Not sure why we keep wandering in the anecdotal wilderness. The answer is yes.

Single color trademarks are protectable in the U.S. And while no entity can “own” a color in all circumstances, the use by another of a trademarked color that results in customer confusion may result in liability for trademark infringement. Colors primarily identified with a certain purveyor of goods and services—from Tiffany & Co.’s diminutive blue box to the literally football field-sized blue turf of Boise State University’s stadium—are tangible, protectable assets.

Well, to be fair, other posters have indeed posted similar cites, starting as early as #3, the key point in Telemark’s cite being:

Years later, in another case, the U.S. Supreme Court reiterated that a single color can indeed be a brand, so long as the public strongly associates the color and the specific product and that the color is in no way functional.

[Lord_Feldon]

@CookingWithGas

Where I live, the Fairfax Yellow Cab company paints its cars a color that I can only call orange.

My town’s Yellow Cab company has white taxis. No color anything like yellow anywhere on the cars. I assume it’s cheaper since white would be a factory standard color, and the brand name must be worth something even if the paint doesn’t match.

[pulykamell]

Actually, I wonder how close the color can be to the “trademarked” color before it infringes. I mean, I guess it needs to be close enough to cause confusion, but how do we determine that? Tiffany blue is pretty distinct, so a sky blue (so without the greenish-tint) I guess wouldn’t qualify, right? Or would it? What about shoes with maroon or even reddish-orange soles?

[Acsenray]

@pulykamell

Actually, I wonder how close the color can be to the “trademarked” color before it infringes. I mean, I guess it needs to be close enough to cause confusion, but how do we determine that? Tiffany blue is pretty distinct, so a sky blue (so without the greenish-tint) I guess wouldn’t qualify, right? Or would it? What about shoes with maroon or even reddish-orange soles?

Likelihood of confusion is judged on a case-by-case basis. There’s no way to answer these questions without a specific case before an actual court.

Courts tend to be skeptical about overly broad claims on color marks doe a variety of reasons, including that everything has to be some color, so it becomes weird if competitors can just start removing colors from competition.

I actually was attracted to the idea of aesthetic functionality in the case of apparel and fashion items in the Louboutin case. I don’t think it benefits the public to restrict contrasting red soles to one company.

Now it’s still not entirely clear what the boundaries of Louboutin’s red sole trademark are, and one of those uncertainties goes straight to your question—hiw close a color can a competitor have?

[Acsenray]

And that’s why I described the color marks in my previous post as “claims” because especially with colors, it’s hard to say whether those things are going to hold up when challenged.