We all know our marks are our brand ambassadors for the products we market, yet sometimes we overlook the fact that, not only do our names or our slogans catch the public’s attention, but also the colors we sport within our logos not to mention the distinctive shapes of our products as well.
So the point we’re making in short is: Trademark your color and your shape.
For instance, did you ever wonder, why people tend to infringe other’s color combinations? Marketing research indicates that over 80% of visual information is related to color. In other words color conveys information.
The use of distinctive color to identify the product can be seen everywhere, pharmaceutical items to industrial equipments. Some products are packaged in variety of distinct colors. For example Kodak’s film comes in a yellow and black box and in Fuji’s case, green.
The United States Supreme Court has clarified that color alone is registrable. Further, trademark owners can protect color as part of a product’s trade dress and can claim color as a feature of a mark. Hence at times, in areas of low literacy or where consumers do not follow the caveat emptor rule, colors and color combinations play an important role in distinguishing products in the marketplace, and are particularly useful where traditional marks are not easily understood by consumers .
Moreover have you ever thought of getting a trademark for the words Blue, Green etc. for say the category of paints? You may not be quite successful there as the names that are generic or descriptive in nature cannot be registered as per the USPTO guidelines because they fail to designate product or services.
Coming to the shape business, getting a shape trademark protection is slightly different from design protection; the most important among the criteria is that the shape must be capable of distinguishing the goods and services from that of the other.
Shapes that are common for certain goods (e.g. wine bottle, an umbrella) and are likely to be needed by other traders and are therefore not capable of distinguishing. So if you have any different and creative fabric design, shoe design etc you can also look for shape trademark registration.
Take the case of Coca Cola being sued by the BT Beverage Company. In this instance, Coke filed an opposition proceeding at the TTAB and also filed a declaratory judgment lawsuit in the Middle District of Tennessee.
During the holidays, Coca Cola sells its beverages in spherical bottles shaped to be Christmas tree ornaments. However, BT sells beverages in bottles that are shaped like sports balls including baseballs, basketballs, soccer balls, and golf balls. BT has filed numerous trademark applications with the USPTO to register its various bottle designs. Coca Cola’s bottle shape, however, was itself the subject of a prior claim of infringement by O-Company and OGO USA. In 1960, the “contour bottle” was registered as a trade-mark, after the Coca-Cola Company convinced the Patent Office that the very shape, the “distinctively shaped contour” in their words, had become so well known that it had taken on trade-mark status.
Another feather in Coke’s cap is that in the review of the Japan Patent Office (JPO)’s decision in The Coca Cola Company v. Japan Patent Office (IP High Ct., May 29, 2008), the IP High Court overruled the JPO’s rejection of Coca Cola’s application to register the shape of its returnable bottle, and held that Coca Cola’s returnable bottle shape would be registered and protected as a three-dimensional (3D) trademark.
Small wonder then, that the Coke brand’s color combo and bottles have achieved iconic status and are the most widely recognized marks of our time.