Should We Worry about Color Depletion? An Empirical Study of USPTO Single-color Trademark Registrations

Abstract

Trademark law across the US, EU and UK permits the registration of single colors as trademarks. However, some judges and experts have raised concerns about this law, known as the color depletion theory, which argues that it could deplete the pool of available colors for use as trademarks. This theory suggests that trademarking single colors raises several issues. It creates market entry barriers. As more single colors are claimed as trademarks, there are fewer color options left for new entrants. Moreover, color depletion leads to increased consumer search costs. When more single colors are claimed as trademarks, the distances between colors shrink and the boundaries between color trademarks are blurred. Thereby consumers are more likely confused by similar color trademarks. Despite extensive theoretical debates on color depletion, this article is the first empirical study that investigates whether in reality color depletion is severe or ignorable. This article examines 858 single-color trademarks recorded in the United States Patent and Trademark Office (USPTO). It is the first quantitative research which uses Python program to examine the scale and distribution of depletion across different colors and product/service classes. It analyzes (1) the existing color depletion percentage in each product/service class, and (2) how soon each product/service class will reach full depletion, and (3) the distribution of depletion in different color areas (hue segments). Based on this data analysis, the article concludes that color depletion is an emergent concern in certain product/service classes including electric and technological products (Class 9), medical instruments (Class 10), etc which are likely to be fully depleted by 2050. Moreover, many color trademarks are concentrated in the red (hue 246-15), orange (hue 16-25, 46-55), yellow (hue 56-65) and green (hue 96-155) segments in Classes 7, 9, 10, 11 and 35. The finding partially proves the color depletion theory. Based on this finding, the article further provides recommendations to the USPTO/courts to address color depletion and calls for rechecking the 'first-possession' trademark system. The research is funded by the UK Creative Industries Policy and Evidence Centre (PEC) under Arts and Humanities Research Council (AHRC) grant AH/S001298/1.

Keywords: Color depletion, empirical, trademark law, registration, USPTO