Strategic Considerations for Color Trademark Protection

Color can be a powerful tool for brand recognition, but securing trademark protection for a color mark involves unique legal and evidentiary challenges. Recent decisions from the Federal Circuit and Trademark Trial and Appeal Board (TTAB) provide a salient reminder that a strategic approach and robust evidentiary support are necessary when pursuing registration of a color mark. 

Whether you are launching a new product or seeking to protect longstanding brand elements, understanding the legal landscape around color marks is essential. The following are some key preliminary considerations for brands considering an investment in a color mark informed by these recent case law developments. 

Key considerations before pursuing a color mark 

1. Assess functionality risks 

A color that reflects a product’s functional feature — such as enhanced performance, durability, or safety — may be deemed unprotectable. Statements in patents, advertising, or technical specifications that highlight such benefits can be used as evidence of functionality. Even expired patents may be relevant in this analysis.  

For example, the Federal Circuit recently upheld a TTAB decision finding that the pink color of ceramic hip implant components was functional and therefore unprotectable.ⁱ To support its decision, the Board relied on the appellant’s expired patent touting the increased durability of chromia, which gave the product its pink appearance.ⁱⁱ  

Takeaway: Colors may not always serve the source-identifying function of a trademark. Before investing in a color mark, ensure that the selected color is used for branding purposes, not to confer some benefit or serve a practical function. 

2. Evaluate genericness concerns 

If a color is commonly used across an industry or product category, it may be considered generic and fail to function as a source identifier. Evidence of widespread third-party use can undermine claims of distinctiveness, especially if consumer recognition is weak or poorly documented. 

In a recent appeal, the Federal Circuit upheld a TTAB decision finding that the dark green color of the applicant’s chloroprene medical gloves was generic rather than source identifying.ⁱⁱⁱ The Board relied primarily on the widespread use of dark green gloves in the medical field in concluding the color was “so common” in the industry as to deprive it of trademark significance.^iv 

Takeaway: Brands should set themselves apart from the pack — do not invest in a color for your product that is widely used. It is prudent to analyze the marketplace before adopting a color mark to weed out potentially generic colors. 

3. Build a strong evidentiary record of distinctiveness

Proving the distinctiveness of a color mark is an uphill battle. To support acquired distinctiveness, declarations and surveys must be credible, methodologically sound, and representative of the relevant consumer base. Cookie-cutter statements or biased surveys are unlikely to carry weight at the U.S. Patent and Trademark Office or in the courts. Applicants should consider supplementing their applications with sales data, advertising spend, and unsolicited media coverage. 

Takeaway: When establishing acquired distinctiveness, quantity and quality are both crucial. Applicants should consult with attorneys and survey experts to ensure a strong showing of the requisite secondary meaning in the minds of consumers. 

Thinking about a color mark? 

Color marks can be valuable brand assets, but they require careful planning and strategic execution. Applicants should consider landscape searches to assess third-party use and potential distinctiveness issues; functionality and genericness risk assessments; evidence supporting declarations of acquired distinctiveness (including surveys); and the additional challenges faced in the prosecution of color mark applications. If you are considering trademark protection for a color mark, contact your Fish & Richardson attorney. 

ⁱ CeramTec GmbH v. Coorstek Bioceramics LLC, 205 U.S.P.Q.2d 28 (Fed. Cir. 2025). 

ⁱⁱ Coorstek Biocermaics LLC v. CeramTec GmbH, Cancellation Nos. 92058781 and 92058796, 2022 WL 17547263 (TTAB Dec. 6, 2022). 

ⁱⁱⁱ In re: PT Medisafe Techs., 134 F.4th 1368 (Fed. Cir. 2025). For more information about PT Medisafe, see “Green Glove Trademark Application Gets Red Light From Federal Circuit.” 

^iv In re PT Medisafe Techs., Ser. No. 88083209, 2023 WL 2369650, at *11 (TTAB Feb. 15, 2023).