As you may have read in our last article, a color or a color scheme can sometimes fall under a company’s trademark if they can prove its distinctiveness. However, what isn’t enough to meet the trademark threshold?
General Mills sought registration of the predominant, yellow color of its well-known Cheerios boxes by attempting to prove the sunny yellow alone was distinctive to their brand. They argued that under Section 2(f) of the Lanham Act, the color yellow had acquired distinctiveness because consumers have come to identify the color yellow, when used in connection with toroidal, oat-based breakfast cereal, as coming specifically from the Cheerios brand, as evidenced through consumer surveys and expert reports. The United States Patent & Trademark Office (USPTO), however, refused registration of the color mark on the grounds that the General Mills had failed to demonstrate acquired distinctiveness.