Reverse engineering a color

I have been oberving the exchange of messages on this topic over the last few days. I find it troubling that several members of the list have opined that copyright protection is not available for a color of paint, but that the creator of the color could rely on trademark protection instead. A cite to Qualitex usually follows this statement. This is simply not a correct statement of law. Although it is true that one may claim exclusive trademark rights in a color, this is permitted only if the color is not functional. In other words, if a color performs some sort of utilitarian function, the "owner" of that color can't prevent others from using it. Paint color is by its very nature functional. The function of the color of paint is to convey that color. Qualitex involved the use of the color green on dry cleaning pressing pads. Because the color green did not have any utilitarian purpose (i.e., it did not indicate size, type, etc.), the Supreme Court found that the entity using the green color could prevent others from using that color for their competing dry cleaning press pads. The Court gave a fairly lengthy discussion of functionality in Qualitex. The fact that the functionality doctrine prevents persons from monopolizing a color if it serves a utilitarian purpose is practically the basis of the Qualitex decision. Trademark protection is not available for a color of paint per se.

Steve Shelton
<sshelton[_at_]mwe.com> Received on Thu Oct 31 1996 - 16:52:59 GMT