Colors AS Trademarks

Most companies have a palette as part of their branding.

  • The shocking pink of the Barbie® aisle at the toy store.
  • The purple and orange of a FedEx® package.
  • The red and white of a can of Campbell’s® soup.
  • The blue of the Twitter® bird.

Some companies go farther and claim color AS their trademark rather than as a feature of their trademark. How is that different? Let’s looks at an example:

The description of the trademark for the registration for the Twitter® bird reads like this:

“The mark consists of a silhouette of a bird in flight in the color blue.”

The description of the trademark for the registration for Tiffany® blue reads like this:

“The mark consists of a shade of blue that is used on product packaging in the form of jewelry pouches with drawstrings.”

See the difference? The Twitter® trademark consists of the bird that happens to be blue. The Tiffany trademark consists of a shade of blue that happens to appear on product packaging.

It’s subtle, but for a trademark attorney, it’s a pretty big difference. Someone using the same blue as the Twitter bird is much less likely to be infringing than someone using Tiffany blue.

There are more color marks than you think. Here’s a sampling. See if you can identify the companies that own each of these color marks. Answers are below.

The mark consists of the color chocolate brown, which is the approximate equivalent of Pantone Matching System 462C, as applied to the entire surface of vehicles and uniforms.

Hint: Delivery services

The mark consists of an orange-colored background covering the entirety of the packaging for the goods. The orange color is approximately equivalent to pantone 165C. The mark consists of color alone.

Hint: Candy

The mark consists of the color canary yellow used over the entire surface of the goods.

Hint: Stationary notes

The mark consists of the color pink as applied to the entirety of the goods.

Hint: Building insulation

The mark consists of the color combination green and yellow in which green is applied to an exterior surface of the machine and a yellow stripe is applied to a portion of the exterior surface.

Hint: Riding mowers

Thanks to Sarah C. for the suggestion that led to this blog post.


A Tale of Two Trademarks

In 2013, Randy Goldberg and David Heath started a company to sell socks. In 2019, they added other items of apparel to their lineup.

In 2017, Shopify launched an app that allows you to track all your package deliveries. In 2020, they added the ability to use the app to shop from your favorite stores.

Two stories of companies growing and changing, much the same, except for one detail:

  • Randy and David chose the brand BOMBAS for their socks allowing them to easily leverage the brand to cover their new products.[1]
  • Shopify used ARRIVAL for the app they launched in 2017. The descriptiveness of ARRIVAL meant that Shopify had to change the name of the app when they added new features.

Even worse, Shopify didn’t learn its lesson: They named the new app SHOP, which is the worst trademark I’ve heard so far this year because it both downplays the feature that 16 million users are already using while also limiting the new features they can add without having to re-rebrand.

 

Big shout out to Julie and Cassandra for the tips that led to this post.

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[1] I would still think the BOMBAS branding is still brilliant even if they didn’t have a bee as part of their logo.