What are the requirements for colors to be trademarked?
A trademark serves as a source identifier for goods or services. While trademarks are commonly words or logos, they can also include colors, store designs, packaging, and other distinctive elements that signal the source of a product or service. To register a trademark with the United States Patent and Trademark Office (USPTO), an applicant must demonstrate that the mark is used in commerce and is linked to the applicant’s goods or services. Registering a color as a trademark can be challenging, as the applicant must show that the color acts as a source identifier for the product or service. Well-known examples of color trademarks include Tiffany & Co.’s blue, Barbie’s pink, and Christian Louboutin’s red soles. In each case, these brands had to prove that the color had acquired a secondary meaning, and that consumers associate the color with the brand’s product or service. Trademark rights in a color are achieved through use, and many brands never actually register the color with the USPTO. For example, in Christian Louboutin Vs. YSL, Louboutin achieved trademark protection for its red sole shoe after suing YSL for infringement due to their all red shoes. The court in this case recognized that the red sole of a shoe was a distinctive marker that the shoe had come from Christian Louboutin, and YSL was prevented from using the same color on the sole of a shoe.
How did Barbie Pink earn trademark protection?
Barbie pink is another example of a color that has trademark protection, but Mattel, Inc. has not registered the color with the USPTO. Mattel earned the right to the shade of pink Pantone 219 C (now known as Barbie Pink) by using it as a color worn by Barbie, and using it on Barbie’s packaging, dream house, and car among other products and promotional materials. Due to Mattel’s long-standing and consistent use of the color, consumers associated the shade of pink with Barbie and Mattel. Mattel’s right to Barbie pink became especially important in Summer 2023, after the release of the Barbie movie when hundreds of brands and businesses were creating Barbie themed products, events and promotional materials. Since Mattel has not registered the mark, it is responsible for enforcing its right to the exclusive use of the color.
What about Brat Green?
While Summer 2023 was the summer of Barbie pink, Summer 2024 was the Brat green summer. Charli XCX released her new album “Brat” on June 7, 2024, which featured a green album cover meant to be a bratty and offensive shade of green. The shade of green blew up on social media and in fashion, and was referred to as “Brat Green.” Charli XCX capitalized on the notoriety of the color and produced Brat green merch and created platforms on social media for brands and consumers to turn themselves, their clothes, and their products Brat green. Vogue Business reported that Brat generated $22.5 million in media impact value, and several brands are launching Brat green products to profit from the trend.
Brat green likely has not yet reached a level of recognition to gain trademark protection, but could reach that point through repeated use of the color in the branding, similar to Barbie. Creating a secondary meaning for a color takes a period of time, and cohesion in the branding and promotion of the product and use of the color. If Brat green is able to gain trademark protection, then it will set a further precedent for color trademarks. This will make it easier in the future for brands, artists, and others to gain protection over colors when they are able to show an association with their product or service.
