Opinion of the Court
which a colored product is normally sold. See Ebert, Trademark Protection in Color: Do It By the Numbers!, 84 T. M. Rep. 379, 405 (1994). Indeed, courts already have done so in cases where a trademark consists of a color plus a design, i. e., a colored symbol such as a gold stripe (around a sewer pipe), a yellow strand of wire rope, or a "brilliant yellow" band (on ampules). See, e. g., Youngstown Sheet & Tube Co. v. Tallman Conduit Co., 149 U. S. P. Q. 656, 657 (TTAB 1966); Amstead Industries, Inc. v. West Coast Wire Rope & Rigging Inc., 2 U. S. P. Q. 2d 1755, 1760 (TTAB 1987); In re Hodes-Lange Corp., 167 U. S. P. Q. 255, 256 (TTAB 1970).
Second, Jacobson argues, as have others, that colors are in limited supply. See, e. g., NutraSweet Co., 917 F. 2d, at 1028; Campbell Soup Co. v. Armour & Co., 175 F. 2d 795, 798 (CA3 1949). Jacobson claims that, if one of many competitors can appropriate a particular color for use as a trademark, and each competitor then tries to do the same, the supply of colors will soon be depleted. Put in its strongest form, this argument would concede that "[h]undreds of color pigments are manufactured and thousands of colors can be obtained by mixing." L. Cheskin, Colors: What They Can Do For You 47 (1947). But, it would add that, in the context of a particular product, only some colors are usable. By the time one discards colors that, say, for reasons of customer appeal, are not usable, and adds the shades that competitors cannot use lest they risk infringing a similar, registered shade, then one is left with only a handful of possible colors. And, under these circumstances, to permit one, or a few, producers to use colors as trademarks will "deplete" the supply of usable colors to the point where a competitor's inability to find a suitable color will put that competitor at a significant disadvantage.
This argument is unpersuasive, however, largely because it relies on an occasional problem to justify a blanket prohibition. When a color serves as a mark, normally alternative colors will likely be available for similar use by others. See, e. g., Owens-Corning, 774 F. 2d, at 1121 (pink insulation).Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: October 4, 2007