Color Me Jealous

We’ve looked at the strength of color as a trademark. Recently, a federal court had a chance to decide a case that’s all about color. Before we get into it, let’s try a quick test:

Which airline flies this plane?

 

Which company made this piece of equipment?

 

What brand of tape is this?

 

If you thought the middle one was made by John Deere, you aren’t alone. Seventy-four percent of respondents can identify John Deere farm equipment just by the colors.

What does it take to have that strong of a color mark? Here’s what the court talked about:

Protect your trademark: “Between the late 1980s and today, Deere sent communications to [40] companies requesting that they cease using the green and yellow color combination.”[1]

Use your trademark for a really long time: “For more than 100 years, Deere has sold a wide variety of . . . equipment” using those colors.[2]

Spend a fortune on advertising: “In 2016, Deere spent roughly $80 million on advertising its agricultural equipment . . ..”[3]

Dig up the dirt on your competitor: “FIMCO chose its green and yellow color scheme to associate with Deere’s famous green and yellow tractors.” [4] “If a party chooses a mark with the intent of causing confusion, that fact alone may be sufficient to justify an inference of confusing similarity.”[5]

We’ve seen how important it is to pick a mark that has the potential to be strong. Now we know what it takes to build that muscle: Time, money, effort.

 

 

 

[1] Deere & Company v. FIMCO Inc., d/b/a/ Schaben Industries, USDC Western Dist of Kentucky, Case No. 5:15-CV-105-TBR, at page 67.

[2] Deere v. FIMCO Inc., at page 4.

[3] Deere v. FIMCO Inc., at pages 10.

[4] Deere v. FIMCO Inc., at page 98.

[5] Deere v. FIMCO Inc., at page 84.

 

Photo of Southwest® Airlines plane ©2014 Tomàs Del Coro licensed under Creative Commons Attribution-ShareAlike 2.0, with modifications by Beeline.

Grow or Go to Zero

What business doesn’t want its assets to grow over time?

The choice you make at the start can have a huge impact on whether the value of your trademark will grow or wither.

If you start with a wonderful trademark like Nest®, Staples®, Google® or Moo®, the sky is the limit for trademark value. Whether the mark actually attains that value depends on lots of things, but at least there’s nothing about the trademark itself that will hold you back.

If you start with a trademark that:

• Consists of words that everyone and her brother are using, like Office Depot® or United®; or
• Merely describes what you sell, like Radio Shack® or Century Theatres®; or
• Is already owned by someone else;

then you’re starting with two strikes against you. Your trademark will be at best neutral and at worst a liability.

Coming up with a clever trademark is hard. Coming up with a trademark that is clever and that no one else is using is even harder but, isn’t it worth it so you don’t have to worry about its holding you back? Isn’t it worth the effort and the cost to get this one thing right at the beginning?