General Mills recently filed an appeal after losing its bid to register a trademark for its yellow cereal boxes. In September 2015, General Mills filed an application with the USPTO for a mark which simply consisted of a yellow box, with typical rectangular cereal box dimensions. General Mills was unsuccessful in proving that it had substantial exclusive use of the color yellow for a specific type of goods, which in this case is Cheerios brand cereal. The question to be asked is would the average, normal consumer confuse other cereal brands housed in yellow boxes with Cheerios?
General Mills not only had to prove that it had a substantial and exclusive use of a yellow box for its Cheerios brand, but also that the use of yellow cereal boxes by other cereal brands would cause consumer confusion and that an average consumer would associate a yellow box with Cheerios. It obviously was going to be a challenge for General Mills to show it had acquired distinctiveness in the minds of consumers considering various other cereal brands also use yellow boxes.
The Examiner for General Mills’ trademark application clarified that under Supreme Court precedent, single colors cannot be considered “inherently distinctive.” Colors can, however, be registered if the owner is able to show that it has acquired “distinctiveness” in the minds of consumers. Examples include: UPS “Brown,” T-Mobile “Magenta,” Target “Red,” Tiffany “Blue,” University of North Carolina “Carolina Blue,” John Deere “Green & Yellow,” and Home Depot “Orange.” Certainly other companies and entities can use those colors, so long as they are not selling competing products.
In the case of the General Mills application, the Examiner ultimately concluded that there are too many cereal brands using yellow boxes and it would be unfair if General Mills were to possess ownership of the yellow box color scheme. Clearly the Cheerios brand does not have exclusive use of yellow cereal boxes; not only do other companies market and sell cereal in yellow boxes, but some even sell similar oat cereals in yellow boxes.
It is unclear if General Mills will win its appeal and acquire a trademark for a yellow cereal box for its Cheerios brand, but what this trademark application and appeal shows is that winning trademark rights to a single color is a major undertaking and challenge, even for well-recognized and established brands like Cheerios. Still, if you believe you have a distinctive product and use of color scheme, you should confer with a trademark attorney to determine what protections and options you have available, or if it infringes with a competing product.