Deborah Gerhardt and Jon McClanahan Lee on Owning Colors
Professor of Practice at the University of Minnesota Law School, discuss their article "Owning Colors," which will be published in the Cardozo Law Review. They begin by explaining that people can own exclusive rights to use particular colors in many different contexts, especially under trademark law. They describe the academic literature on how consumers perceive colors, as well as their own empirical study of consumer protections. Then they describe how the courts and the Trademark Office have conceptualized when trademark can protect colors, focusing on the role of functionality and secondary meaning, as well as their empirical study of color mark registrations. They argue that the Trademark Office registers only a limited number of color marks, and seems to be doing a good job in weeding out weak color marks. Gerhardt is on Twitter at @DebRGerhardt and her scholarship is available on SSRN. Lee's scholarship is also available on SSRN.