Friday, July 28, 2017

Realty Company Files Application to Register Color Pink on Yard Signs As Trademark

We've all seen them. The "For Sale" signs realtor place in yards are commonplace. The signs typically take the same shape but come in a variety of colors and usually display contact information of the realtor. One company, however, is claiming the use of the color pink on these signs is its trademark and is seeking a federal trademark registration for the same.
On July 24th, the appropriately named Pink Realty, Inc. filed a federal trademark application for the "color pink as shown in the attached image."  The application covers a variety of real estate services in Class 36, including "real estate agencies" and "real estate brokerage." According to the application, Pink Realty, Inc. has been using the color pink on these signs since November 22, 2009.

The dotted lines are not part of the mark, but rather "inform the viewer where and how color is used on the product or product package, while at the same time making it clear that the shape of the product, or the shape of the product package, is not claimed as part of the mark." TMEP 1202.05(d)(i).

Is it possible to claim a color as a trademark and obtain federal registration for it? Yes. UPS, for example, owns a registration for the color brown. But obtaining a color registration is not easy.

To start, color marks are never inherently distinctive. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 211-12 (2000). A showing of acquired distinctiveness is always required to obtain a registration, and making that showing is difficult in the context of color marks. TMEP 1202.05(a). In other words, an applicant for a color mark must demonstrate that its use of the color identifies it as the source of the good or services in the mind of consumers (i.e., when consumers see color being used in the way the applicant is using it, they associate it with the applicant). For example, when most people see a brown delivery truck, they know it's a UPS truck.

Additionally, colors that are functional cannot be registered as trademarks. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165-66 (1995). Colors may be considered functional if they yield "a utilitarian or functional advantage, for example, yellow or orange for safety signs." TMEP 1202.05(b). Additionally, if a specific color is the natural by-product of a manufacturing process, that color may be considered functional ("In such a case, appropriation of the color by a single party would place others at a competitive disadvantage by requiring them to alter the manufacturing process."). Id.

Does the color pink on "For Sale" signs lend a utilitarian or functional advantage? Does it make the sign easier to see and, if so, is that a utilitarian or functional advantage? If the applicant can cross that hurdle, it will need to make a strong showing that its use of the color pink has acquired distinctiveness in the marketplace before it can obtain a registration.

Can Pink Realty obtain the rare color mark registration? Keep an eye on this application to find out.

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