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Monica Sullivan

Publication Date

7-2013

Document Type

Comment

Abstract

As an artist, it would be difficult to complete a work of art if you were limited to the use of certain colors, only those colors that no other artist had claimed. Imagine, for instance, that Monet, upon completion of his water lilies, is sued by Picasso for using a certain shade of blue. Picasso claims that the blue used by Monet is the same blue he uses to express melancholy. In fact, Picasso has used that blue throughout a number of his paintings, and it has become somewhat of a theme in his work. Should Picasso have ownership of that shade of blue?

Fashion designers, artists, filmmakers, and architects alike "share a dependence on color as an indispensable medium." Color is expressive; it serves to "depict the idea" of the creator. Color serves to translate what a creator seeks to communicate to others. Despite the importance of color in the creative process, courts have allowed single colors to serve as trademarks under certain circumstances. For instance, the United States Supreme Court and the United States Court of Appeals for the Federal Circuit have recognized trademarks for a green-gold color used by a manufacturer on dry cleaning press pads and a shade of pink used on insulation.

But is trademark registration of color inappropriate in certain artistic contexts? Specifically, should single-color marks be eligible for trademark protection in the fashion industry, "one of the world's most important creative industries?" The answer to this question is significant in the fashion industry where "visual impact is of the utmost importance." While there should not be a per se rule against such trademarks, single-color marks in the fashion context are inherently suspect. This Comment asserts that the trademark doctrine of aesthetic functionality may provide protection for the creative use of color in fashion. In certain circumstances, as Judge Posner stated simply, "[b]eauty is function," and when functionality is present, no trademark protection is warranted. This Comment also asserts that the trademark concept of secondary meaning may serve as a check to the broad availability of color mark registration. If courts take a hard-line approach on what is required to prove secondary meaning, only those owners who have truly cultivated their color marks, and successfully created an association between their marks and the source of their marks in the minds of the public, will succeed in obtaining trademark protection.

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