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:
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Which airline flies this plane?

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Which company made this piece of equipment?

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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.

 

 

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[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.

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