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War of Colours : Cheerios lose the battle!!


The US Trademark Trial and Appeal Board (TTAB) has refused to grant a trademark for the color "yellow" used by General Mills food company for making yellow boxes for its  iconic breakfast cereal brand "Cheerios". The ground for refusal of registration has been laid out as "lack of distinctiveness". 



A color trademark protects the use of the color in a market sector protected by the trademark.  Granting trademark for a single color simply allows a company to use a particular combination and shade of color in its own industry. For example, the color purple of Cadbury chocolates is protected by trademark only for chocolate products. The color can be used in any industry other than chocolate products. The U.S. Supreme Court has already laid down the principle for registering single colors as trademarks. According to it “a single color can indeed be a brand, so long as the public strongly associates the color and the specific product and that the color is in no way functional”. Other prominent single color marks registered with the USPTO include “Red Soles” of designer Christian Louboutin, “Turquoise blue box” of Tiffany & co. etc.

 

In the present case, the examiner explained why the ownership of a single color is so difficult to claim. The only way a color can be registered, is if the owner shows that it has “acquired distinctiveness” in the minds of consumers. But having considered the fact that many other cereal brands also use yellow colored boxes, the examiner said, “The applicant does not have exclusive use of the color yellow in connection with the goods and certainly not as a source identifier.” To grant the trademark, Cheerios “must show that in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself”. Therefore, it’s not enough to simply argue that a given color is an attribute of a brand. A company applying to the U.S. Patent and Trademark Office must prove that consumers visually equate a specific color with that brand.