Color as Trademark

Can Color Be A Trademark?

Can You Trademark Based on Color?

Are you wondering if a particular use of color can be the subject of a Federal Trademark Registration?

  • The short answer: Yes, color can be a Trademark — when certain evidentiary facts are present.
  • The longer answer follows…

What is a Trademark?

A “Trademark,” according to 15 U.S.C. § 1027,  is “any word, name, symbol, or device, or any combination thereof — (1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”

Exclusions to obtaining a federal Trademark registration are covered in

The Doctrine of Trademark Functionality

In Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), the Supreme Court held that the “pillow” shape of a shredded wheat biscuit was functional and not the subject of a Trademark Registration.

In the US Supreme Court case of Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) the Supreme Court held that the colors of the brand name pharmaceutical capsules were functional and not the subject of a Trademark Registration.

In short, if the aspect is functional, it cannot be the subject of a federal Trademark Registration. However, in a footnote to Inwood Laboratories, Inc. case, on page 850, the Court wrote:

“Although sometimes color plays an important role (unrelated to source identification) in making a product more desirable, sometimes it does not. And, this latter fact—the fact that sometimes color is not essential to a product’s use or purpose and does not affect cost or quality—indicates that the doctrine of “functionality” does not create an absolute bar to the use of color alone as a mark.”

The Case of Colored Dry Cleaning Pads

Can green-gold color pads for dry cleaning presses be the subject of a federal trademark registration? Yep!

The US Trademark Office granted US Registration No. 1,633,711 for a “particular shade of green-gold applied to the top and side surfaces of the goods [pads]” to the Qualitex Company.  Another company, Jacobson, later began to sell its own green-gold pads. Among other causes of action, Qualitex sued Jacobson for Trademark infringement. Eventually, the case made its way to the US Supreme Court.

On page 166 of Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, Mr. Justice Breyer wrote:

“It would seem, then, that color alone, at least sometimes, can meet the basic legal requirements for use as a trademark. It can act as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function…the District Court, in this case, entered findings (accepted by the Ninth Circuit) that show Qualitex’s green-gold press pad color has met these requirements. The green-gold color acts as a symbol. Having developed secondary meaning (for customers identified the green-gold color as Qualitex’s), it identifies the press pads’ source. And, the green-gold color serves no other function. (Although it is important to use some color on press pads to avoid noticeable stains, the court found “no competitive need in the press pad industry for the green-gold color, since other colors are equally usable.”)…Accordingly, unless there is some special reason that convincingly militates against the use of color alone as a trademark, trademark law would protect Qualitex’s use of the green-gold color on its press pads.”

Conclusion on Color

To answer the initial question, according to the Supreme Court of the United States:

  • A green-gold color for a dry cleaner’s press pad is the subject of a federal Trademark Registration.
  • The blue and white or the blue and red colors of pharmaceutical capsules are not the subject of a federal Trademark Registration.

Trademark issues are complex, if you need legal assistance preparing or managing your Trademark/Service Mark or Patent Applications, please contact Business Patent Law, PLLC.

Business Patent Law, PLLC provides intellectual property and business counsel for businesses and companies.

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Warranties as Effective Marketing Tools

Warranties: An Effective Marketing Tool

Warranties May Be Automatic

When a business sells goods, under the various State versions of the Uniform Commercial Code (UCC), implied warranties attach to the goods sold – unless the UCC’s implied warranties are specifically disclaimed in writing. If your company sells goods to customers in various States and some defective goods were discovered subsequent to the sale, one or more State’s version of the UCC’s implied warranties will apply. In the event of litigation, attorneys for each party will argue for the most favorable jurisdiction and venue. You, as the seller, could be forced to defend a legal action in the buyer’s home venue.

As a general rule, warranties are not applied to services supplied by the company supplying the service. For instance, no warranty is implied by law for a business that assists customers with the purchase of insurance policies, unless that business makes a warranty to the customer.

The Legal Aspects of Implied Warranties


The UCC’s Implied Warranty of Merchantability, in part, reads: “(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale…”

Fitness for a Particular Purpose

The UCC’s Implied Warranty of Fitness for a Particular Purpose reads: “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

Warranty of Title and Against Infringement

The UCC’s Warranty of Title and Against Infringement reads, “(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that (a) the title conveyed shall be good, and its transfer rightful; and (b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.  (2) A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.  (3) Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications.”

How to Eliminate Implied Warranties

In the majority of instances, the only way to eliminate the application of the various States’ versions of the Uniform Commercial Code to the sale of your company’s goods is to specifically disclaim the UCC’s implied warranties in writing.

Warranty Use as a Marketing Tool

Patented Product vs. Generic Product

As CEO of your company, you believe that invention is the lifeblood of the company and you have budgeted ten percent of annual sales for development, improvement and Patent procurement for the company’s new products. The company’s engineers have developed the third-generation widget which is patented and has also just received FDA approval. The company’s second-generation widget’s Patent expired years earlier and is currently manufactured by generic company competitors. Users of the second generation widget love the operation of the second generation widget manufactured by your generic competitors. Those users also like the price that is several thousand dollars less than what your company sold the second generation widget for before the Patent expired. Other than the UCC’s implied warranties and any other warranty required by law, the generic manufacturers offer no other warranties.

Competing with Generics

Your company’s patented third-generation widget includes radio frequency capabilities, memory, processing means, sensors, etc. not included in your second generation widget. FDA testing revealed that over a span of years, the patented third-generation widget is more durable than the second generation widget. The third generation widget performs healthcare functions impossible for the second generation widget to perform. Costs of the patented third-generation widget to the user are thousands of dollars more than the generic second-generation widget. Your company struggles to have its patented third-generation widget regain and improve its former market share previously achieved with its second generation widget.

Improving Market Share With Warranties

To improve the company’s market share of its patented third-generation widget, the CEO took instruction from the motor vehicle industry. The CEO opted to provide a ten year “bumper to bumper” warranty and commenced advertising that the patented third-generation widget was sold under warranty. The advertisement touted a limited ten-year warranty and superior performance compared to other widgets. Over the years, the marketplace has revealed that for high “price point” goods, generous warranties can improve sales.

Limited Warranties in Lieu of UCC Warranties

A business can offer a limited “bumper to bumper” warranty for its new product while expressly disclaiming the States’ Uniform Commercial Code’s implied warranties and other conditions. Depending on the type of goods and other facts, it is also possible for a business to expressly place limits on liability.

If you have questions about intellectual properties, warranties, and disclaimers, please contact Business Patent Law, PLLC and we will discuss possibilities for your business and intellectual properties.

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