Owning Colors

59 Pages Posted: 7 Feb 2020

See all articles by Deborah R. Gerhardt

Deborah R. Gerhardt

University of North Carolina School of Law

Jon J. Lee

University of Oklahoma College of Law

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

Suggested Citation

Gerhardt, Deborah R. and Lee, Jon J., Owning Colors (May 9, 2019). UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3385850 or http://dx.doi.org/10.2139/ssrn.3385850

Deborah R. Gerhardt

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7219 (Phone)
919-962-3375 (Fax)

HOME PAGE: http://www.law.unc.edu/faculty/directory/gerhardtdeborahr/default.aspx

Jon J. Lee (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

HOME PAGE: http://law.ou.edu/directory/jon-lee

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