Cardozo Law Review
Cardozo L. Rev.
Part I of this article explores how different disciplines have contended with understanding color as a signifier of embodied and referential meaning. As a path towards understanding embodied meaning, we summarize what scientific literature teaches about the process behind color vision and biological responses to different color wavelengths. We then turn to the referential or learned meaning of colors. The scholarly literature from psychology, art, religious history, marketing, political science, and behavioral economics overwhelmingly supports the proposition that color sends varied and contradictory expressive signals that are elastic over time and cultural context. Given the many possible and contradictory messages color can express, we raise the question of whether colors are capable of serving as commercially distinctive trademarks.
Part II responds to that question. It sets forth empirical data we collected to learn more about how consumers perceive colors. By asking a panel of consumers questions about color preferences and color associations with certain emotions or qualities, we collected additional evidence to support the theory that colors are associated with socially constructed patterns that vary depending on context. To determine whether consumers also use colors to signify trademark meaning, we asked whether they found color useful in differentiating brands when they shop. Our data reflect that even when cued to think about many expressive possibilities, consumers overwhelmingly report that color assists them in differentiating products in the marketplace. These responses support the theory that color does communicate trademark meaning.
Part III describes how trademark law sorts these signals. In 1995, the Supreme Court, in Qualitex Co. v. Jacobson Products Co., defined a standard for protecting colors as marks, independent of other source identifying symbols. It held that color alone may be protected as a trademark but only if it has acquired secondary meaning and is not functional. After explaining how the Supreme Court arrived at its standard for protecting color marks, we explain how the USPTO has implemented the standard to determine which color marks may be protected only at common law and which may obtain national protection through federal registration on the USPTO’s Principal Register.
Some scholars asserted that Qualitex would open the floodgates to an undue expansion of federal protection for nontraditional marks such as color. In Part IV, we consider whether those dire predictions were realized. We empirically analyze three decades of USPTO trademark data from 1987–2017 to show how frequently colors are claimed in trademark applications and how often such claims succeed. Using publication and registration rates as our measures for success in the trademark application process, we compare success rates for marks claiming color to those that do not. We also compare the registration data to the survey results from Part II to illuminate how color choices for trademarks map onto consumer color preferences and associations with quality and luxury. Part V sets forth our conclusions.