Yellow Hue Unsuccessfully Claimed as Proprietary by Cheerios in Trademark Attempt
In the world of intellectual property, colours can sometimes be more than just a splash of hue on a product. A case in point is the ongoing debate surrounding the trademarking of colours, as exemplified by Google Inc.'s legal tussle with Chris Gillespie and General Mills' attempt to secure the rights to the colour yellow for their cereal boxes.
Google, renowned for its distinctive search engine logo, has been successful in protecting the term "google" as a trademark, thanks to a decision by the Supreme Court that refused to nullify the trademark. Meanwhile, Google Inc. filed a cybersquatting lawsuit against Chris Gillespie, who registered 763 domain names that included the word "google."
On the other side of the spectrum, General Mills, the makers of Cheerios, have been trying to trademark the colour yellow for their cereal boxes for the past two years. However, their efforts have been met with resistance. The Trademark Trial and Appeal Board (TTAB) has rejected an attempt to trademark the colour yellow for Cheerios boxes, stating that the yellow box of cereal is not necessarily associated with Cheerios in the eyes of the consumers.
The process of trademarking a colour is not straightforward. A colour becomes "inherently distinctive" for trademark purposes primarily through acquired distinctiveness or secondary meaning, meaning consumers must come to immediately associate that specific colour with the particular brand or source of goods/services. This is unlike inherently distinctive word or design marks, which are often more easily recognizable.
Successful single-colour trademarks, such as UPS's brown, T-Mobile's magenta, Target's red, and Home Depot's orange, all illustrate this process. These companies have invested heavily in consistent, exclusive use of their colours tied closely to their brand identity, backed by legal evidence of consumer association with those colours.
For instance, T-Mobile's magenta with its precise shade has been extensively and consistently used in commerce over time to build strong consumer recognition that the colour identifies the brand exclusively. Additionally, the colour is not functional or common in the industry, which is a prerequisite for trademark protection.
However, not all attempts at trademarking colours have been successful. In the case of General Mills and Cheerios, the TTAB decided that the yellow packaging, while iconic, has not been used exclusively enough to create a strong association with the brand in the minds of consumers.
It's important to note that when a colour is trademarked, direct competitors can no longer use it on similar products. This could potentially limit the design options for other companies in the same industry, a factor that has been debated in the context of General Mills' attempt to trademark the colour yellow for Cheerios.
In the end, the key factor in successful single-colour trademark registrations worldwide is acquired distinctiveness—the process of prolonged, exclusive, and distinctive use leading consumers to associate that colour with one brand only. This association is what gives colours their trademark status and sets them apart in the competitive world of branding and intellectual property.
Finance plays a crucial role in the process of trademarking a colour, as companies often invest heavily to ensure exclusive use of their colours and build strong consumer recognition, as demonstrated by T-Mobile's magenta. In the case of General Mills' attempt to trademark the colour yellow for Cheerios, the lack of exclusive use has been a significant factor in the rejected trademark application.
