Some years ago, when the time came for a small settlement in western Missouri to open its first post office, residents decided they wanted to give the town a name that was—literally—one of a kind. Their first choice was “Excelsior.” But when they sent the name off to Washington, they were told it was already in use elsewhere. The residents submitted a second choice, and then a third, with the same result. Finally, in frustration, they wrote to the Postmaster General himself and told him basically: OK then—you come up with something. “We don’t care what name you give us,” they wrote. “Just make it something peculiar.”

And so was born the town of Peculiar, Missouri (motto: “Where the ‘Odds’ are with You”). You probably never heard of it before. But now that you have and you’ll never forget it.

The branding process is a lot like that. The goal is to come up with names, slogans, logos, or other indicia, that make people immediately think of your products—and no one else’s. One of those “other indicia” is color.

Another goal of branding is to come up with names, logos, etc. that you can prevent others from using. How can you establish enforceable trademark rights in the colors used in your branding? Color can be legally protected as a trademark, and even registered as a trademark in the U.S. Patent and Trademark Office under certain circumstances. How you go about this depends on how you are using color in your branding.

Color and Color Combinations as Elements of Logo Design

It has long been the case that trademark rights can be claimed in a particular color (or color combination) as part of a symbol or logo. Some familiar examples of color logos that have been registered as trademarks[1] can be seen in Image 1.

Most trademark owners register black-and-white-only images of their logos. This has the advantage of protecting the logo regardless of the color(s) in which it appears. This is the course to follow if (a) you typically display the logo in different colors, or (b) you want to leave open the possibility of the changing the color in the future. But if a particular color scheme is a key element of the design, and you plan to use it consistently well into the future, you can also register a color image of the logo.

The requirements for registration of such logos are essentially the same as for all trademarks. First, the mark needs to be distinctive. In trademark language, this means the mark must not be so commonplace or descriptive that it would be unfair to preclude others from using a similar wording or design. This can be either inherent distinctiveness, meaning that the mark is so unique that it’s not likely others in the same industry would need to be able use it; or acquired distinctiveness, whereby even a very descriptive term (such as “American Airlines”) can, by virtue of long use in commerce, come to be associated exclusively with its owner. Second, the mark needs to be different in appearance, sound, and meaning from existing trademarks for similar goods or services.

Single Color as a Distinctive Element of the Product Itself

Sometimes a product effectively becomes its own trademark, owing to some unusual shape or other feature. This can include the use of color on components of the product. Examples include bright red lacquered soles on Christian Loboutin women’s shoes, bright red knobs on Wolf kitchen ranges, the yellow used on Post-It notes, and the pink color of Owens-Corning insulation. These can be seen on Image 2.

Under U.S. law, color in and of itself is deemed never to be inherently distinctive, so a company that wants to register a single color as a trademark needs to establish acquired distinctiveness by using the mark long enough and widely enough that consumers have come to associate the color with the owner’s product.

Of course, there also must be no one else using essentially the same color as a trademark for similar goods or services. Even so, two parties can own trademark rights for the same color. For example, both The Coca-Cola Company and Target Brands Inc., have registered red as a trademark. This is possible because their respective goods and services are sufficiently unrelated that consumers would be unlikely to think the parties’ goods come from the same source: as a rule, bottling companies don’t operate department stores, and big-box retailers don’t make soft drinks. Conversely, General Mills recently failed to register yellow as a trademark for Cheerios breakfast cereals, because numerous other cereal brands also use yellow in their packaging.

Everyone knows consumers are bombarded by a multitude of brand messages, and everyone accordingly looks for fresh and novel ways to make their brand stand out from the crowd—to make it “peculiar” in the best sense. Use of non-traditional trademarks, like color, can be an effective way to do that.

[1] All trademarks are the property of their owners. Images are used solely to identify the goods and services of the respective owners, and were obtained from the owners’ websites.