Trademarking Colors: A Rainbow of potential issues

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Trademarking Colors: A Rainbow of potential issues

 

In 2012, Nike signed a five-year uniform and apparel deal with the National Football League valued at roughly $1.1 billion.  In a bold marketing strategy, Nike finessed their signature “Volt” color – a lime green hue similar to Pantone 381 C – and slapped that color onto the bottom of all Nike-sponsored players’ cleats and on-field accessories.  Every time Nike players kick their feet off the ground, Volt radiated onto millions of television screens throughout the country.  Today, this florescent tint has become a cornerstone for the world’s largest producer of athletic apparel and accessories.

When Nike first attempted to trademark the color Volt in 2006, the United States Patent and Trademark Office denied the request, stating in part that, to successfully file an application for a color trademark, certain requirements must be met.  More specifically, Nike had to show:

  1. Examples of advertising and promotional materials specifically promoting the identified color as a mark;
  2. Dollar figures for advertisements devoted to the promotion of the specified color as a mark;
  3. Dealer and consumer statements of recognition of the specified color as a mark; and
  4. Any other evidence that might establish recognition of the identified color as a mark for the goods.

Nike swiftly acted and filed a 57-page response on March 19, 2007, and less than three months later on June 6th, the USPTO issued a Notice of Publication for Volt.  At last, on December 18, 2007, the color Volt was registered.

Interesting?  Possibly.  Why, though, is this information important to you, a small business owner who is trying to get your company off the ground?  The thought to trademark a color has not even crossed your mind.  In fact, you may not have known that you could even do such a thing.

The answer?  Money.  Throughout the years, international consumer institutions like Nike, Target (red), the Home Depot (orange) and UPS (brown) have gone through such great lengths to develop their intellectual property portfolio that they have successfully registered colors as trademarks that have become synonymous with their brands’ images.  They understand that creating and fostering brand awareness is imperative to any company; so much so that their brand awareness exists in a symbiotic relationship with these now iconic swatches.

Entrepreneurs are not that dissimilar.  Many spend dozens of hours and hundreds of dollars developing and testing potential logos as well.  Perhaps you’re thinking of doing the same, or maybe you already have poured resources into creating one for your company.  Grasping not only how your logo affects your company’s image, but also how that logo is perceived in the greater marketplace will give you a stronger foundation to grow your brand properly.

As you can see, part of this foundation lies, to a great extent, within your logo’s color.  At one point, the Home Depot made the decision to tie its brand to the color orange.  Now that color is trademarked.  This information is an imperatively cautionary tale for any fledgling enterprise going through this exact phase.  Where you may know not to copy “Just Do It”, you may not understand the greater intricacies of trademark, copyright and intellectual property protection.   Taking the proper first steps, and speaking to an experienced attorney about such matters, may save you from facing litigation from Target simply because you thought it would be a good idea to use the color red.

Matthew Bonds

Senior Law Clerk

(212) 865-9848

Email Matthew

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