Generally, trademarks are defined as “any word, name, symbol, or device, or any combination thereof” that is used to distinguish one’s goods or services from that of another. In 1985, the U.S. Court of Appeals first ruled that Owens-Coring could trademark the color pink for its insulation. A decade later, the Supreme Court reiterated the notion a color can serve as a trademark as long as it (1) serves as an indicator of source, and (2) is not functional. Since then, numerous companies have filed and successfully received trademark protection for colors associated with their products or services. Think the red soles of Christian Louboutin® shoes or light blue of Tiffany & Co.® jewelry boxes.

Glossier Pink

Most recently, Glossier, a popular cosmetic and skin-care company, was recently granted a trademark for the color pink. Specifically, Glossier obtained trademark protection for the color pink “as applied to the inner surface of portions of boxes” for its cosmetic and skin-care products. However, the process was not without resistance.

U.S. Registration No. 6219366
The USPTO’s Initial Refusal

The United States Patent and Trademark Office (USPTO) initially refused registration stating that Glossier’s mark was not inherently distinctive. Moreover, to register a color mark, the Applicant must prove that its mark is inherently distinctive. In response to the Office Action, Glossier provided a plethora of evidence showing the distinctiveness of its goods. The evidence summited included Instagram® photos of consumers with their products, direct consumer declarations attesting to Glossier’s distinctiveness, along with multiple publications on the popularity of Glossier products. In the end, Glossier successfully overcome the examining attorney’s refusal and is registered as U.S. Registration No. 6219366.

Takeaway

Overall, Glossier is one of many companies that have successfully overcome the USPTO’s high bar for trademarking a color. While the scope of protection is narrow, if you can show distinctiveness, it is another great tool in any companies’ intellectual property portfolio. With so many beauty and cosmetic products on the market, having a distinctive and protectable trademark helps Glossier stand out from the competition.

Can you trademark a color?

Yes, but it can be challenging. Color marks always require addition showing of acquired distinctiveness (TMEP 1202.05) and the color cannot provide a functional advantage (TMEP 1202.05(b)).