3/28/2005

How does a company trademark a color?

Cadbury Trademarks The Color Purple, and they're not alone

...a ton of companies have probably trademarked the color yellow - but they only get it for that product. Stanley could trademark yellow screwdrivers, Caterpillar could trademark yellow bulldozers... Given the wide range of products Tiffany sells, and the uniqueness of their shade of blue, Tiffany probably owns that blue for just about any kind of box that jewelry or other gift could come in. All they have to say is, your honor, if your spouse gave you a box that color blue, would you assume it came from Tiffany & Co.?

"trademark" is not a verb. One can "patent" an invention, and thereby acquire certain exclusive rights in the invention. But one can't "trademark" anything. Trademark rights in the USA are acquired by use. One may choose to register the mark with the USPTO, and it's a good idea to do so, but that is optional. There's no such thing as "trademarking." One can register a mark, but the trademark rights have already been created through use.

[Copyrights work the same way. As soon as one creates a work, he or she owns the copyright in the work. Registration is optional, but again a good idea, and indeed necessary if the copyright is to be enforced against infringers].

Companies often claim trademark rights in words, colors , shapes, etc., but that does not means those claims would hold up if tested. One often sees the "TM" or "SM" symbol used next to an alleged mark, but those symbols mean nothing more than that the user claims to own a trademark. The symbol does't even mean that an application to register has been filed. Anyone can put TM or SM on anything they want.

Use of the R-in-a-circle symbol, however, means that the mark has been federally registered (and thus has passed the muster of the USPTO examination process).

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