59 Pages Posted: 21 May 2019 Last revised: 9 Aug 2019
Date Written: May 9, 2019
Color is powerful. Historically, colors have been invested with mystical, symbolic, and religious significance. We are biologically wired to respond to color cues. A particular color may stimulate emotion, activate memory, and influence perception of the passage of time. Yet the omnipresence of color in our visual world is just the beginning of the story. We have learned to attach many meanings to colors through our lived experiences. Colors have become heuristics for even our abstract ideas. They connect communities. They unite and divide sports fans. They may be shorthand for gender identity, sexual orientation, race, and political identity. Although the ubiquity of color stimulation may be thought to dull sensitivity to it, studies find otherwise.
Given their significant persuasive potential, it is not surprising that colors are sometimes the subject of intellectual property claims. Patents protect the process for creating the “blackest black.” Copyright law confers exclusive rights to copy and display original pictorial and graphic works, which include color field paintings. Trademark law protects colors as symbols of commercial source and collective identity. In this Article, we focus on the third category to explore whether trademark protection for colors is warranted given the vast expressive potential in the color wheel.
We review how different disciplines approach color meaning, and we enrich these understandings with survey evidence we collected to verify whether colors serve an informational trademark function. We then empirically examine how trademark law contends with color meaning by analyzing a wealth of data from the United States Patent and Trademark Office (“USPTO”).
Keywords: trademark, intellectual property, color, USPTO, empirical, quantitative
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