Someday, You Might Need a Trademark License to Use Christmas’ Red-Green Color Scheme

Someday, You Might Need a Trademark License to Use Christmas’ Red-Green Color Scheme

Okay, so Christmas' red-green motif isn't actually in jeopardy, but the use of colors (in particular, red and green) as trademarks is becoming a reoccurring legal theme.

First, it was red.

In the case of Christian Louboutin v. Yves Saint Laurent, the Second Circuit rejected, as inconsistent with Supreme Court precedent, a lower court's decision that a single color - red soled shoes - could never serve as a trademark in the fashion industry.

And now, green is at issue.

Green Eco-Coating on Cookware

Telebrands Corp claims a trademark in the green color of its Orgreenic cookware. The cookware includes pots and pans with the color green on the inside surface. Sales of Orgreenic products through direct response and wholesale channels have exceeded $41 million.

In 2011, Meyer Manufacturing, which sells the Earthpan skillet, filed a declaratory judgment action against Telebrands. The Earthpan skillet's interior, exterior and handle are all a similar light green color.

"U.S. Trademark Registration No. 3, 843,331 for the 'color green on the inside surface of a pot or pan,' is not distinctive," Meyer's argues, "and does not possess secondary meaning associated with a source of particular goods or services."

Meyers points out that the color green has only recently become associated with natural, organic, healthy, and sustainable products and services. Prior to that time, green, as used for such products, was simply a color that manufacturers might choose to use for aesthetic reasons.

Is the Green Mark Invalid?

On Monday, Meyers move for summary judgment, attacking the mark's validity. Meyers' invalidity argument rests upon:

  • Telebrands' use of the color green as merely functional; and
  • Telebrands' inability to show that the color mark has obtained secondary meaning.

"Using green for the interior of the OrGREENic frying pan," Meyers argues, "is not fanciful or arbitrary. Rather, it is a direct signal that the OrGREENic cookware is 'eco-friendly,' healthy, and a 'green.'"

Meyers notes that no other colors signal that a product is environmentally friendly or healthy.

"Being 'green' is synonymous with being environmentally friendly, and Telebrands may not monopolize a color that performs such a function," Meyers says.  

Telebrands has yet to respond to the motion. But in support of its counterclaims, Telebrands alleges that the mark is non-functional, fanciful, distinctive and well-recognized as indicating the source of origin of Telebrand products.


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