PINK

About color being trademarked: technically any trademark that includes “plus the design” in its registered description has color protected within the mark as a whole. Just because someone has a registered mark, that does not necessarily mean the mark holder has a monopoly on everything to do with that mark—the mark holder has to take a back seat for any previous uses of a similar mark, which is why there is a Burger King restaurant in Mattoon, Illinois that is not part of the franchise chain and that reportedly makes much better burgers, or if the mark is also someone’s legal name, which is why McDonald’s restaurants get into trouble in Scotland when it tries to enforce its trademark on every McDonald who opens a restaurant.

A lot of time and money goes into developing a good trademark or service mark—that was the argument Owens-Corning used with registering the color “PINK.” In addition to the prior use and name exceptions, the mark registration is only good in the class(es) the mark is registered for, so Owens-Corning cannot stop Victoria’s Secret from using “PINK” as a mark—while arguably they both provide insulation (Styrofoam or silk), they marks are used in very different businesses where there is little likelihood of confusion. “Likelihood of confusion” is a one of the controlling factors behind granting trademark registration—if there is deemed to be a likelihood of confusion, registration will be denied. It is unlikely someone will go into a Victoria’s Secret store expecting to find foam house insulation.

Even then, once a mark is registered, the registration is not indefinite; the owner has to periodically renew the mark or it becomes available for someone else to use. There is also the danger the mark can become “generic”—enter into the vocabulary as a regular word. Thermos, aspirin, and kerosene were all once protected marks, but no more. Xerox Corporation has gone to great lengths to remind people that one does not make Xeroxes on a Xerox, but rather one makes photocopies on a Xerox photocopier machine (I particularly like the graveyard of genericized marks ad). Besides, trademarks and service marks are grammatically adjectives, not nouns or verbs (sorry—the legal department where I worked was in a constant battle with the marketing department because they wanted to save space and noun the mark and we insisted they use the ™ , sm (Word doesn’t have a symbol for sm) or ® as well as a noun for what ever the business was (restaurant, car wash, etc.).

Any way, I’ve digressed and so I’m going home.