Joe Calvaruso, head of Orrick's New York Intellectual Property Group, authored an article that explores the practice of trade marking colors. The article, entitled “Colour Catch-Up,” was published by the U.K.-based Institute of Trade Mark Attorneys (ITMA). An excerpt from the article is included below.
Consumers in the U.S. are constantly bombarded in the media with advertisements for various products and services. As a result, they are used to associating such products and services with their respective brands or trade marks, including word marks, name abbreviations, logos and slogans. Historically, however, consumers have not perceived a colour to be an identifier per se for a singular source of goods or services. Nonetheless, as we will see, colour trade marks can be both registered and enforced if they are able to distinguish one source from another and are not functional or merely ornamental.