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High Court Not Color-Blind Distinctive Color Can Be Seen As Product ‘Trademark’

Wed., March 29, 1995

Companies can register a product’s distinctive color as a trademark, the Supreme Court ruled Tuesday in a decision that would allow manufacturers to own the light blue color of artificial sweetener packets, the hot pink of fiberglass insulation or the dark maroon of soda cans.

The unanimous decision came in a case brought by a company seeking protection for the “special shade of green-gold” on dry cleaning press pads, and for the first time the court declared that color alone can uniquely identify a product.

Justice Stephen G. Breyer wrote that “customers may come to treat a particular color on a product or its packaging … as signifying a brand.” One idea behind trademarks is that they help consumers make efficient choices.

He observed that the U.S. Patent and Trademark Office has registered trademarks for a particular shape (of a Coca-Cola bottle), a particular sound (of NBC’s three chimes) and a scent (of plumeria blossoms on sewing thread).

“If a shape, a sound, and a fragrance can act as symbols, why, one might ask, can a color not do the same?” Breyer asked.

The justice noted that the Lanham Act of 1946 does not refer to colors when it gives a seller the exclusive right to register a trademark and prevent competitors from using it.

But he said the law’s reference to “symbol” or “device” should be read broadly to cover almost anything “capable of carrying meaning,” including color. He said dry cleaning establishments had come to recognize the green-gold press pad that the Chicago-based Qualitex Co. had made since the 1950s.

The lawsuit began when a Qualitex rival, Jacobson Products, in 1989 began to sell its own greengold press pads. Qualitex sued for trademark infringement and unfair competition

Christopher Bloom, one of the lawyers who represented Qualitex, said many of dry cleaning operators who buy Qualitex pads do not speak English.

By using a product with a distinctive color, he said, “you can cross language lines.”

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