Can you protect the colours in your trademarks?
Apply the following criteria:
- Is the colour functional ?
e.g use of blue in frozen products-
Abrit vs Kraft
US courts ruled that ‘Royal Blue’ is a cool colour and could not be monopolized . It was suggestive of coldness and used by an array of frozen foods.
Campbell Soup vs Armour
Courts held that Campbell could not protect their red as that means some other company could protect say orange. Campbell could not claim rights over half red and half white label. The red and white of Campbell was different from Armour’s and Armour’s Carnation had a different colour scheme use of red and white.
- Is there a secondary meaning attached to the colour of the product?
Dap’s red bucket for ceramic- US courts held that red was identifiable with the concrete business and was not functional. It was purely used to identify Dap’s brand.
Any competitor using red was relying on the secondary meaning that is in existence and exploiting the identity of Dap’s product and thus causing the public to be confused.
- Is it descriptive? Is it general practice of the trade?
e.g multi coloured candy packaging with stripes
Life-Savers vs Curtiss Candy Company
Life Savers could not claim infringement of its striped multi-coloured packaging. Colour packaging for candy often indicated the flavour.
WHAT ARE SOME ELEMENTS IN A FUNCTIONALITY TEST?
- The colour’s associations relate to the product in a literal or abstract way.
E.g green for eco productsAesthetic effect- attractive combination of colours that are pleasing to the eye
E.g. green and yellow are harmonious.
- Colours which could affect the eye’s perception of size – black objects are smaller then white objects.
- Visual effects –e.g optical ilusions or eye catching or use of text that are legible while others can’t be read easily. Some colours “pop” out .
HOW TO PROTECT YOUR MARK WHEN YOU USE DIFFERENT COLOURS FOR YOUR PRODUCTS
Even if you use the mark in different colours, you may submit the application with a DRAWING IN BLACK AND WHITE as it covers the use of the mark in any colour.
If you wish your customer to associate your product with a specific colour then you may limit your mark to the specific colours and submit a drawing with those colours.
Such colours must NOT be functional or descriptive.
E.g. green is associated with eco or organic products.
Blue is functional – e.g for frozen foods. So your colours chosen should not be in normal business practice associated with your goods or services.