TRADEMARK PROTECTION OF COLOR ALONE - HOW AND WHEN DOES A COLOR DEVELOP SECONDARY MEANING AND WHY COLOR MARKS CAN NEVER BE INHERENTLY DISTINCTIVE

Aug 23, 2026

Color as a brand identifier can substantially increase recognition and influence purchase decisions, prompting manufacturers to seek trademark protection for color. This article examines the legal framework governing color marks, focusing on Supreme Court decisions including Qualitex and Wal-Mart, which distinguish registration eligibility from inherent distinctiveness. It analyzes how and when color can acquire secondary meaning, the TTAB’s fact-sensitive inquiries, and the procedural standards used to evaluate trademark protection for nontraditional marks.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages27

Reading Time1 h 8 min

AccessFree to download

Introduction

History and Background of Federal Protection for Trademarks

Lanham Act

How Color Marks Acquire Secondary Meaning

Requirements for Trademark Protection of Color

Present State of Color Trademark Law

Conclusion and Suggestions for Producers

TRADEMARK PROTECTION OF COLOR ALONE: HOW AND WHEN DOES A COLOR DEVELOP SECONDARY MEANING AND WHY COLOR MARKS CAN NEVER BE INHERENTLY DISTINCTIVE * Diane E. Moir I. INTRODUCTION According to a study performed by the University of Loyola, Maryland,“[c]olor increases brand recognition by up to 80 percent.”1 Additional research shows that color has a significant impact on sales since “people make a subconscious judgment about a . . . product within 90 seconds of initial viewing and . . . between 62% and 90% of that assessment is based on color alone.”2 As a result, many product manufacturers have turned to color psychologists and brand experts to discover innovative and interesting ways of using color to distinguish their products from the products of others, 3 and have sought protection of their names as well as their color identity through trademark registration.4 In 1995, the United States Supreme Court decided the landmark case, Qualitex Co. v. Jacobson Products Co., Inc.5 In Qualitex, the Supreme Court held that color alone could be registered as a trademark, provided it had acquired distinctiveness through second- * J.D. Candidate, 2011, Touro College, Jacob D. Fuchsberg Law Center. 2007, Towson University, B.S. in English Literature. I would like to thank my entire family, but especially my parents and sister, for their support and understanding over the last three years. I also thank Professor Rena Seplowitz for her thoughtful suggestions and insight into intellectual property law. 1 Jill Morton, Why Color Matters, COLORCOM (2005), [http://www.colorcom.com/why_col](http://www.colorcom.com/why_col)[or.html](or.html) ([citation omitted](citation omitted)) . 2 Id. (citation omitted) . 3 See, e.g., id. 4 See Jill Morton, Who Owns Hues?, COLORCOM (2008), [http://www.colormatters.com/col](http://www.colormatters.com/col)[or_trademark.html.](or_trademark.html.) [5](5 514 U.S. 159)[ 514 U.S. 159](5 514 U.S. 159) ( [1995](1995)) . 408 TOURO LAW REVIEW [Vol. 27 ary meaning.6 Since the Court believed that the Lanham Act did not pose a bar to the registration of color alone, the Court held color could be registered on the principal or supplemental register if it met trademark requirements.7 Although the Court in Qualitex did not explicitly state that color alone could never be inherently distinctive, the Court ended all inquiries five years later when it decided Wal-Mart Stores, Inc. v. Samara Brothers, Inc.8 In Wal-Mart, the Court explicitly stated “that no [color] mark can ever be inherently distinctive,” but it may be protected as a trademark provided the color acquired a secondary meaning.9 In Qualitex and Wal-Mart, the issue the Court did not decide, and the issue that the federal courts and the Trademark Trial and Appeal Board (“TTAB”) have tried to develop, is by what means, and at what point, color marks attain secondary meaning for trademark purposes. 10 Since color is considered a nontraditional trademark, 11 federal courts and the TTAB face a “fact-sensitive inquiry”12 as to whether a single color, or combination of colors, is capable of, and does in fact serve as a sufficient indicator of product source. 13 This Comment explores the current state of color trademark registration by examining federal statutes, court cases, and the federal trademark examining procedure. Part II discusses the history and background of federal trademark protection, the importance of the [6](6 Id. at)[ Id.](6 Id. at)[ at](6 Id. at) 163. [7](7 Id. at)[ Id.](7 Id. at)[ at](7 Id. at) 162. 8 529 U. S. 205, 212 (2000) . [9](9 Id. at 211-12)[ Id.](9 Id. at 211-12)[ at 211-12](9 Id. at 211-12) . 10 See, e.g., White Consol. Indus., Inc, v. Royal Appliance Mfg. Co., No. 74/156,648, 2000 WL 713972, at *6 (T.T.A.B. May 31, 2000) . 11 MALLA POLLACK, CORPORATE COUNSEL’S GUIDE TO TRADEMARK LAW § 4:14 (2009) . 12 Major League Baseball Props., Inc. v. Salvino, Inc., 420 F. Supp. 2d 212, 222 (S.D.N.Y. 2005) . 13

FAQs

Why do manufacturers seek trademark protection for colors alone?

Color strongly affects brand recognition and purchase judgments, leading manufacturers to use color identity as a source indicator and to pursue trademark registration to distinguish their products.

What did the Supreme Court decide about registering color marks?

In Qualitex, color alone could be registered if it acquired distinctiveness through secondary meaning. In Wal-Mart, the Court stated no color mark can be inherently distinctive and protection depends on secondary meaning.

What factors do courts and the TTAB consider when evaluating color marks?

Because color is a nontraditional trademark, courts and the TTAB apply a fact-sensitive inquiry to determine whether a color or color combination serves as a sufficient indicator of product source and whether secondary meaning exists.

Aug 23, 2026

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