Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 5 (1995)

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Cite as: 514 U. S. 159 (1995)

Opinion of the Court

tell a customer that they refer to a brand. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F. 2d 4, 9-10 (CA2 1976) (Friendly, J.); see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 768 (1992). The imaginary word "Suntost," or the words "Suntost Marmalade," on a jar of orange jam immediately would signal a brand or a product "source"; the jam's orange color does not do so. But, over time, customers may come to treat a particular color on a product or its packaging (say, a color that in context seems unusual, such as pink on a firm's insulating material or red on the head of a large industrial bolt) as signifying a brand. And, if so, that color would have come to identify and distinguish the goods—i. e., "to indicate" their "source"—much in the way that descriptive words on a product (say, "Trim" on nail clippers or "Car-Freshner" on deodorizer) can come to indicate a product's origin. See, e. g., J. Wiss & Sons Co. v. W. E. Bassett Co., 59 C. C. P. A. 1269, 1271 (Pat.), 462 F. 2d 567, 569 (1972); Car-Freshner Corp. v. Turtle Wax, Inc., 268 F. Supp. 162, 164 (SDNY 1967). In this circumstance, trademark law says that the word (e. g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982) ("[S]econdary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

We cannot find in the basic objectives of trademark law any obvious theoretical objection to the use of color alone as a trademark, where that color has attained "secondary meaning" and therefore identifies and distinguishes a particular brand (and thus indicates its "source"). In principle, trademark law, by preventing others from copying a source-identifying mark, "reduce[s] the customer's costs of shopping


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