Put A ® On It: Color Trademarks (and Cheerios)

Color trademarks are unique beasts. Either color is an essential part of your packaging, logo, or overall branding (looking at you, Lyft), or color is kind of a non-issue. (Think about the rainbow of Nike swooshes you’ve seen in your lifetime.) It’s possible to register or “trademark” a color, but, as General Mills just learned, it’s not easy. Below, a little more on color trademarks and the registration process.

Color trademarks are powerful. Just as you would expect a turquoise-blue jewelry box tied with a white ribbon to have a Tiffany & Co. product inside, customers use color to distinguish certain brands (and their products) from others. Yes, it is possible to own exclusive rights to a color trademark.

A few examples of companies that own color trademarks include:[table id=10 /]

If These Colors are Registered Trademarks, Can I Not Use Them Anymore?

Remember our previous discussion on descriptive trademarks? Just like an owner of a descriptive mark, the owner of a color trademark has to prove that the mark (the color) is not just a color, but functions as a trademark. Remember, a trademark is a signal to consumers that the brand's products or services come from a particular source. Using a color in a non-trademark sense usually does not amount to infringement of a color trademark.

What Happened with Cheerios?

General Mills wanted to protect its rights in the bright yellow color on its boxes of Cheerios cereal, and took the issue to the Trademark Trial and Appeal Board (or "TTAB").

The applied-for yellow box

The company argued that “consumers have come to identify the color yellow, when used in connection with the goods, comes from not only a single source, but specifically the Cheerios brand.” Although Cheerios has been sold in yellow boxes since the mid-1940s, the TTAB was not convinced that the Cheerios box was distinguishable. After all, a quick stroll inside your local grocery would show you a ton of yellow-hued boxes, such as:

Lots and lots of yellow cereal boxes, used in the TTAB's opinion on the matter

A few weeks ago, General Mills' breakfast was ruined. The TTAB decided that, contrary to General Mills’ claims, consumers do not identify yellow exclusively with Cheerios cereal. It held that consumers are “more likely to view yellow packing simply as eye-catching ornamentation.”

What Does This Mean for the Rest of Us?

Avoid General Mills' fate. Remember that you must prove your chosen color identifies your brand (and thus indicates "source"). It is easier to successfully register a color mark if you have proof that customers use this color to identify your product or service over another.

Special thank you to Katelyn Jezowski for contributing to this blog post!