Cheerios Yellow: A Colorful Approach to Branding and Trademarks
Did you know that colors can be registered as trademarks? Color marks can be useful for businesses that use a specific color in association with their goods or services, similarly to using words and logos as trademarks. However, securing a color mark is not an easy task. An applicant must show that the applied-for color is distinctive such that the consuming public would view the color as identifying a single source (i.e., brand) of goods or services.
Too many Yellow Cereal Boxes:
This past summer, the Trademark Trial and Appeal Board ("TTAB") ruled that cereal giant General Mills cannot register the color yellow as a trademark for the cereal brand Cheerios, because the color hasn't acquired the requisite distinctiveness. General Mills argued that yellow was registrable as a trademark because consumers have come to view the color yellow as a unique source signifier for Cheerios. The TTAB, however, found that "customers, accustomed to seeing numerous brands from different sources offered in yellow packaging, are unlikely to be conditioned to perceive yellow packaging as an indicator of a unique source. Rather, they are more likely to view yellow packaging simply as eye-catching ornamentation customarily used for the packaging of breakfast cereals generally."
As shown above, Cheerios markets their cereals under various colors—not just yellow. Plus, several other cereal brands—such as Kellogg's Corn Pops and Kix—consistently use the color yellow on their packaging. Thus, it seems that the color yellow is merely ornamental and not actually a source identifier. Absent the requisite distinctiveness, the TTAB decided it would be inappropriate to allow Cheerios to exclude other cereal brands from using the color yellow on their packaging.
Distinctive Colors as Brand Signifiers:
So when can a color be registered as a trademark? The answer is: when an applicant can show that the consuming public views the color as identifying the source (i.e., the brand) of the particular product or services. However, the U.S. Patent and Trademark Office ("PTO") is careful about issuing registrations for color trademarks. To acquire distinctiveness, the applicant must generally dedicate significant time, money, and resources to successfully market their products and services under the applied-for color. Plus, the consuming public must actually associate the color with a single brand. Although not easily done, many companies have successfully built their brands using color marks. Some notable examples include:
Home Depot Orange for home improvement supplies
Owens-Corning Pink for building insulation
Tiffany Blue for fine jewelry
T-Mobile Magenta for cell phone services
3 Tips for securing a Color Trademark:
- Choose a particular color that your competitors aren't already using in their branding;
- Make sure your chosen color doesn't serve a functional* purpose; and
- Consistently build your brand using the color you want to register.
*For example, neon yellow for safety vests isn't registrable because the color is functional.
And, as always, you should consult an experienced trademark attorney if you need advice relating to trademark protection.
Res Nova Law is an intellectual property and business law firm based in beautiful Portland, Oregon, and serving innovative companies and entrepreneurs across the Pacific Northwest. Our friendly and knowledgeable attorneys can advise you on patents, trademarks, copyrights, and trade secrets, and how developing and protecting your intellectual property can help your business generate revenue and grow. As experienced litigators, we can also help you resolve intellectual property disputes and avoid potential litigation.