Color trademarks can be powerful assets, but they pose unique challenges when it comes to trademark registration. The recent decision in In re Post Foods, LLC (2024) serves as a reminder of how the U.S. Patent and Trademark Office (USPTO) and the Trademark Trial and Appeal Board (TTAB) evaluate color as a trademark.

Color as a Trademark?

Sometimes a color meets the requirements for trademark protection; however, it is often very difficult to achieve. A color trademark refers to the use of a specific color or combination of colors as a distinctive indicator of the source of goods or services. Unlike traditional word marks or logos, color can never be inherently distinctive as a source indicator. To be eligible for trademark registration, a color must have acquired distinctiveness and must not be functional. Examples of marks that have been registered include UPS’ Pullman Brown and Tiffany Blue.

As the Supreme Court in Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995), explained in the landmark ruling on color trademarks:

[A] product’s color is unlike “fanciful,” “arbitrary,” or “suggestive” words or designs, which almost automatically tell a customer that they refer to a brand… 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’…”

What this means is that the color must have achieved a level of distinctiveness through consistent and substantially exclusive use over time such that the consumer public recognizes it as identifying the source of the goods or services.

This is often difficult to obtain, even for well-known brands. For example, in 2017, the Trademark Trial and Appeal Board (“TTAB”) held that General Mills IP Holdings II, LLC could not register the color yellow for its Cheerios brand cereal box. The TTAB held that General Mills did not provide sufficient evidence to support the claim that the yellow box that packaged its toroidal (circle) shaped oat cereal had acquired sufficient distinctiveness to allow registration. This ruling was due, in part, to a determination that a substantial number of other cereal products in the marketplace use yellow packaging ,and consumers do not perceive the color yellow to be a source indicator.

The Fruity Pebbles Case: A Closer Look

Earlier this year, another cereal brand failed to register color as a trademark. Post Foods, LLC, sought to register the color combination of red, orange, yellow, green, light blue, purple, and pink, a palette featured in "Fruity Pebbles" breakfast cereal. The TTAB found that the colors failed to function as a trademark. As evidence, applicant submitted consumer surveys, advertising expenditures, sales revenues, and extensive media coverage. Despite this evidence, including its memorable association with Fred Flintstone Post's evidence was insufficient and the trademark application faced scrutiny.

In similar fashion to the General Mills matter, the TTAB found that Post’s use of all colors on “breakfast cereals” (the goods for which the application was seeking registration) was not substantially exclusive. Because so many other cereal manufacturers sold cereals in multiple colors, consumers would not view multicolored cereals as pointing to Post alone as the source.

Also, the TTAB found that the survey evidence was flawed. In trademark cases, surveys are used to show how a relevant population of consumers perceive a mark. The Board found that the first survey design was flawed as it did not focus on the color alone. It was limited to consumer perception of color as applied to crisp rice cereal pieces, not the identified goods – all breakfast cereals including other shapes. failed to demonstrate that the colors themselves had acquired distinctiveness for the claimed product, and not just from one shape or type like the pebble-shaped cereal. It was critical for the survey to show that the colors, regardless of shape, were associated with a single source.

While the second survey attempted to fix the problem by covering a broader range of cereal shapes, the TTAB found the results problematic. The control image was associated with Froot Loops—a competing brand—and 89% of responses identified the product as Froot Loops. The Board concluded that the survey failed to show that consumers associated the colors with a single source for all breakfast cereals.

Conclusion

The Fruity Pebbles case serves as an important reminder for companies seeking to register and enforce color trademarks as part of a brand strategy. Given the length of time it could take to show acquired distinctiveness for color, an applicant could be faced with the argument that other brands use similar colors in the mark. Further, as demonstrated by the Fruity Pebbles opinion, applicants must demonstrate not only that the color(s) have acquired distinctiveness, but also that their evidence aligns with the scope of the application. As color trademarks continue to be a valuable tool in brand identity, understanding these nuances is crucial for successful registration.