The sights, sounds, and smells of autumn are upon us. One familiar sight for those of us living in the Midwest is a tractor or combine tirelessly working through a field harvesting this year’s crop before the snow flies. Many people have no trouble recognizing the company with the tractors that sport the green and yellow color scheme. Did you know that these colors are protected under intellectual property? In fact, many companies have these non-traditional trademarks known as color marks.
So how do you trademark a color? A single color can be trademarked as long as it is not functional and it has acquired distinctiveness for the goods listed. For instance, a number of well-known color marks are in existence. United Parcel Service holds a trademark registration for the color brown (Reg. No. 2,901,090); Owen’s Corning has registrations for the color pink (Reg. Nos. 3,165,001; 2,380,742; 2,380,445; 2,090,588; and 1,439,132); Tiffany’s has multiple registrations for a certain shade of blue (Reg. Nos. 4,177,892; 2,359,351; 2,416,794; 2,184,128); and Home Depot has a registration for the color orange (Reg. No. 2,276,946).
However, in light of the aforementioned trademarks for color, it has taken John Deere® a number of years to acquire federal trademark registrations for its “John Deere Green” and “John Deere Agricultural Yellow” color schemes. It began in early 1982 when Deere tried to block a competitor from using the colors green and yellow on tractor attachments. The court held that those colors were aesthetically functional and did not grant Deere any relief. The court held that because consumers wanted their tractor accessories to match their tractor, the use of green and yellow was functional.
Still trying to press on, Deere filed applications for trademark protection in 1982 and 1985 for different green and yellow layouts on machines (Reg. Nos. 1,254,339; 1,502,103; 1,503,576). The Examining Attorney at the Trademark Office refused the applications filed in 1985 based on aesthetic functionality. Deere appealed, and in 1988, the Trademark Trial and Appeal Board ruled in favor of Deere holding that the colors made the product more attractive and were not functional. Thus, the applications were allowed.
In 1995, the Supreme Court made a landmark decision regarding color and trademarks. The Court held that a single color could be protected as a trademark. The previous argument has been that if single color registrations were allowed, a monopoly in a field of goods and services would occur, and this should not be allowed. The Court rejected this argument and held that a single color could be protected as a trademark.
Following this decision, in 2004, it was held that Deere could not simply have rights in every abstract combination of green and yellow on machinery. However, they could protect their rights regarding specific color layouts on specific areas of equipment. Since this decision, Deere has gained a number of trademark registrations regarding color combinations on specific machines.
Thus, it can be said that those tractors out in the field helped pave the way for the color trademarks that are in existence today. So the next time you see one, just think how much legal work it took to protect those yellow and green colors.