Yellow Hue's Trademarking Attempt by Cheerios Unsuccessful
In a recent decision, the Trademark Trial and Appeal Board (TTAB) has rejected an attempt by General Mills to trademark the color yellow for Cheerios boxes. The move comes as General Mills has been trying to secure intellectual property protection for the distinctive yellow packaging that has been associated with the cereal brand since 1945.
Cheerios, a household name and one of General Mills's most popular products, comes in a variety of flavors, not all of which are packaged in yellow boxes. However, the yellow packaging has become synonymous with the brand and has sold billions over the years.
Under US trademark law, it is possible to trademark a color applied to packaging or product, but only if that color has become "inherently distinctive" in the eyes of consumers. The TTAB, however, decided that the yellow box of cereal is not necessarily associated with Cheerios in the eyes of consumers.
The TTAB's decision was based on the key requirements for trademarking a single color in the United States. The color must identify and distinguish the source of the goods or services, it cannot serve a utilitarian purpose, it must have acquired secondary meaning, and it must be used in commerce in connection with the product or packaging.
In the case of Cheerios, the TTAB found that while the yellow packaging is distinctive, it is not inherently distinctive. The TTAB also noted that yellow is a common color used in the cereal industry, which undermines its ability to distinguish Cheerios from other brands.
This decision is significant as it highlights the challenges facing companies seeking to trademark a single color for their products. It also underscores the importance of meeting the strict requirements for trademark protection, particularly distinctiveness and non-functionality, with secondary meaning being critical.
Other companies have successfully trademarked single colors, such as Tiffany & Co.’s robin’s egg blue on packaging, UPS’s brown on delivery trucks and uniforms, and Christian Louboutin’s red soles on shoes. Each of these examples is protected in their specific contexts consistent with the requirements for trademarking a single color.
For General Mills, the decision means that other yellow boxes of cereal can continue to be sold on the market. The company may choose to appeal the decision or reconsider its strategy for intellectual property protection.
In the meantime, the TTAB's decision serves as a reminder to companies seeking to trademark a single color that the process is not straightforward and that careful consideration must be given to the distinctiveness, non-functionality, and consumer recognition of the color in question.
[1] United States Patent and Trademark Office. (n.d.). Color marks. Retrieved from https://www.uspto.gov/trademarks/tmep/1206
[2] Legal Information Institute. (n.d.). Qualitex Co. v. Jacobson Products Co. Retrieved from https://www.law.cornell.edu/supct/html/93-1328.ZO.html
[3] United States Patent and Trademark Office. (n.d.). Trademark basics. Retrieved from https://www.uspto.gov/trademarks/basics
[4] World Intellectual Property Organization. (n.d.). Trademarks: Colors. Retrieved from https://www.wipo.int/edocs/pubdocs/en/wipo_pub_834_2019/wipo_pub_834_2019.pdf
General Mills, in their business endeavors, faces a setback as the TTAB refuses to grant trademark rights for the color yellow on Cheerios boxes, arguing that it does not inherently distinguish the brand in consumer finance. This decision highlights the intricacies and stringent requirements that companies must meet when pursuing single color trademarks, such as distinctiveness, non-functionality, and consumer recognition.
