Bifalgorithm post · Property · (”Strong”
Color Functionality
Color Functionality (Property · (”Strong”) — "Second, Jacobson argues, as have others, that colors are in limited supply. See, e.g., NutraSweet Co., 917 F.2d,…
Ideas in this flowchart
- Jacobson’s color-depletion argument is ultimately unpersuasive.
- Jacobson objects that colors are in limited supply.
- Although many colors can be manufactured or mixed, only some are usable for a particular product because of customer appeal and trademark conflicts.
- Jacobson predicts that allowing producers to trademark colors would leave competitors unable to find suitable colors and place them at a significant disadvantage.
- An occasional color-scarcity problem does not justify a blanket prohibition on using colors as trademarks.
- Normally, alternative colors will be available for similar use by others, as illustrated by the pink-insulation example.
- If a genuine color-depletion problem arises, another legal safeguard becomes relevant.
- The functionality doctrine can prevent the anticompetitive consequences of protecting a color as a trademark.
- Functionality forbids trademark protection when a product feature is essential to the article’s use or purpose or affects its cost or quality.
- The doctrine protects competitors from losing the ability to replicate important product features unrelated to reputation or recognition.
- Competitors may copy a pill’s color when it identifies the medication, because drug-color disputes primarily implicate public health and generic substitution.
