Ann Bartow is a Professor of Law at the University of South Carolina School of Law.
One of the cases that always troubled me when I taught Trademark Law was Qualitex v. Jacobson Products Co., in which the U.S. Supreme Court concluded that colors alone could constitute protectable trademarks. Colors could always be protected as part of a visual trademark, but colors that are part of a product itself are, it seems to me, always functional. Sometimes the function is utilitarian, such as the orange color of traffic cones to make them more visible. Other times the function is aesthetic, such as when one purchases an orange shirt.
As a general matter, I argue that allowing one company to monopolize the use of a particular color for a product or range of goods and services is unjustifiably anticompetitive. The primary doctrinal arguments I raise against recognizing color-alone trademarks include: aesthetic functionality; the related concept of communicative functionality; uncertainty about the scope of color alone marks; and the very real possibility of color exhaustion, as the palette of commercially
appealing colors for a particular product is likely to be far more limited than the dictionary of attractive and usable words.
I hope you enjoy reading the piece. I’d be very interested in any feedback on the article readers care to provide.
Professor Ann Bartow’s article “The True Colors of Trademark Law: Greenlighting a Red Tide of Anti Competition Blues” is available for download on SSRN here.