Oberlo blogged about the Color Psychology, which is the important role color plays in how consumers perceive a brand. According the post, color affects our day-to-day decisions including what items to buy. The Drum also wrote about blue being the dominant color used by global industries. Because of its importance in the purchasing decision, more companies should consider protecting colors as trademarks. However, not as many as you think attempt to do this because obtaining a trademark registration for a color – as a non-traditional trademark – can require some effort.
Recently, the Trademark Trial and Appeal Board addressed, for the first time, whether multiple colors applied to product packaging can be an inherently distinctive trademark or if the colors must acquire distinctiveness. Forney Industries, Inc. – manufacturer of welding and abrasives tools, equipment, and accessories – applied to register the colors black, yellow, and red applied to packaging for a variety of welding and abrasives goods. The Trademark Office refused registration of Forney’s mark on the ground that the multiple colors is not an inherently distinctive trademark.
Color applied to product packaging is treated the same as color applied to a product and because color applied to a product can never be an inherently distinctive trademark, color applied to product packaging can never be an inherently distinctive trademark. This does not mean that color can never function as a trademark for a product or its packaging, but that color must acquire distinctiveness. It is not immediately protectable as a trademark. And there is no meaningful distinction between a single color or multiple colors when applying this principle.
This case involved color in the abstract. If Forney had applied the multiple colors applied to well-defined shape, pattern, other distinctive design, then the color applies to that extra matter could be inherently distinctive. But since Forney did not argue in the alternative that its multiple color mark had acquired distinctiveness, the Board affirmed the refusal to register Forney’s multiple color mark.