Seeing Red: What the Fashion World Has Shown Us about Trademarks and Color
One of the most interesting things about trademark law is its flexibility. The law has adapted to provide trademark protection to a wide variety of objects from the mundane, like words or logos, to the unusual, like live animals. One commonly litigated non-traditional trademark is color. While the ability to trademark a combination of colors is not controversial, companies over the years have sought to gain trademark protection for a single color. Most recently this has been litigated in the context of high fashion. The fashion designer Christian Louboutin has recently brought the latest lawsuit in a series against a variety of different competing designers for infringing Louboutin’s trademark on having a red-soled shoe. However, the issue applies to much more than just fashion, and has previously been litigated in industries as diverse as jewelry and housing insulation.
Trademarking a Single Color
The general rule about trademarking a single color is that it is allowable, but that the protection is difficult to achieve and limited in its scope. Both of these problems stem from the government policy behind protecting trademarks in the first place. The goal of trademarks is to allow consumers to easily identify which company is responsible for a specific good or service, not to provide a competitive advantage to the mark’s owner beyond the ability to build a good reputation.
As far as achieving protection for a single color in the first place, that is difficult because there are not many instances where a single color actually identifies the company making the product. The color cannot simply be unique or unusual; it has to trigger an association in the mind of the consumer between the product and the company, which is a much more difficult thing to do. Commonly given examples for that sort of association are the blue of a Tiffany’s box or the brown of a UPS truck.
Even in instances where the trademark is granted, the protection is fairly limited because courts do not want companies using trademark law to put their competitors at a substantive disadvantage. For example, one of the Louboutin cases referenced above involved an allegedly infringing shoe that was completely red, both the sole and the rest of it. While the court did uphold the validity of Louboutin’s color trademark in that case, it limited it to cases where the sole contrasted with the rest of the shoe, so that the other shoe was not infringing. This is because the court held that making an entirely red shoe like that was a design decision based on fashion and aesthetics, and completely taking away the ability to use red from Louboutin’s competitors would unduly restrict their ability to compete.
Trademarking Multiple Colors
Importantly, the above difficulties are limited to single-color trademarks, and are considerably lessened for trademarks involving multiple colors, patterns, or colors combined with shapes. Consequently, businesses still building their brand may want to consider opting for one of those trademarks to ensure easier protection.
Building and protecting a company’s brand and reputation is especially important in today’s world where word of mouth and online reviews can have a major impact on a company’s profits. If you are currently involved in a trademark dispute and want to learn more about your options, contact a West Palm Beach trademark attorney at Pike & Lustig, LLP today.
