What can Brown do for you? Well, it might sue you if you use its distinctive color. That’s because UPS has trademarked its shade of brown.
Numerous brands have trademarked colors:
- Tiffany & Co.’s blue
- The Home Depot’s orange
- Caterpillar’s yellow
- Owens Corning’s pink
- Coca-Cola’s red
- Cadbury’s purple
- Post-It’s yellow
- John Deer’s green
- Fiskars’ orange
- Target’s red
Another is designer Christian Louboutin’s red, used as a brand identifier on the soles of its women’s shoes, made popular by Sex and the City‘s Sarah Jessica Parker.
Louboutin registered its shade of red with the U.S. Patent and Trademark Office in 2008, and is now trying to prevent competitor Yves Saint Laurent from selling scarlet-soled shoes of its own. The fashion house says YSL’s copycat soles “threaten to mislead the public.”
At issue is whether Louboutin’s use of red is functional. Colors can only be trademarked in the U.S. if intended to identify the brand. If color is employed in a functional way, such as using green to denote earth-friendly products, competitors cannot be prevented from doing the same. Otherwise, it is unfair competition.
The district court judge in the Louboutin case reasoned that, in the fashion industry, color is always functional. Doesn’t color, in the context of fashion, enhance beauty? Isn’t that the role of color? And in the fashion industry, is it even right for a brand to own a color?
So, does Louboutin’s red enhance the attractiveness of its shoes or simply identify them?
It’s a gray area.