While it may be surprising to some, colors may be trademarked. Some examples of trademarked colors include: UPS’s “Brown,” Home Depot’s “Orange,” Target’s “Red,” 3M’s “Canary Yellow,” Coca-Cola’s “Coke Red,” “Mattel’s “Barbie Pink,” and Tiffany’s “Blue.” The colors in these examples are given trademark protection because the companies and their associated products that use those specific colors have acquired a distinctiveness in the minds of consumers. That does not mean other companies cannot use the trademarked colors in business, but they generally are barred from using the colors if they sell competing products.
Earlier this month, preeminent farm equipment manufacturer John Deere won a trademark lawsuit against a rival company, FIMCO, Inc., for copying its “green and yellow” color scheme that has been associated with John Deere’s tractors and vehicles for more than a century. Even people who do not farm generally are familiar with the John Deere name and color scheme. Not only does FIMCO produce tractors and sprayers that directly compete with John Deere, but FIMCO painted its tractors and sprayers with John Deere’s trademarked “green and yellow” color scheme.
The court found that the tractors and sprayers produced by both companies were closely related and sold in the same marketing channels; and because of the relatedness of the goods, similarity of the marks, and evidence of actual confusion by consumers, FIMCO lost. While the judge noted that John Deere’s trademark rights have been weakened over time by the use of the colors in question by other companies, the judge ultimately found that John Deere’s “green and yellow” color scheme was indeed “distinctive” and “famous” for trademark purposes.
One of FIMCO’s key defenses was the doctrine of aesthetic functionality. It claimed that the doctrine was applicable because as a competing company, it needed to use John Deere’s color scheme so that customers could “match” FIMCO products with John Deere products if they were used together. The court, however, was not swayed by the argument and held that FIMCO did not have to offer an exact John Deere color scheme and that there were alternative color scheme options that could have satisfied the needs of its customers.
For entrepreneurs and business owners, the important thing to take away from this recent case is not only to be mindful of what colors you use for products and services, but how you use the colors. Whether you are considering implementing a color scheme in business operations or if you are using a unique color or color scheme and want to protect it, we at Greenspoon Marder can assist with addressing your trademark concerns and needs.