How many think of Home Depot when the generic and industry category words “Home Improvement” appear in the color orange? I do, that’s why I snapped this photo of signage on a local strip mall the other day.
Apparently, there used to be a business in Champlin, Minnesota called “Wholesale Home Improvement Center” — nice signage, but the business didn’t last.
So, what if this sign was still linked to a viable home improvement business, instead of abandoned commercial real estate, would Home Depot have a valid likelihood of confusion claim?
Another interesting question might be whether Home Depot could have the signage removed anyway, despite any active business going on there, but we’ll save that one for another day.
If you’re selling black-colored t-shirts with the geographic term IOWA printed in yellow or gold, you’ll probably hear from my alma mater, unless you have a license, so even generic and descriptive words when linked with color can be source-identifying and function as a non-traditional trademark worthy of protection.
But color has it’s limits, you may recall Susan Perera’s piece on trademark rights and industry color clusters — and, while similar red and yellow color combinations are clearly associated with both McDonalds and In-N-Out Burger, I’m not aware of any other home improvement retail store chain making predominant use of an orange color scheme.
Indeed, the USPTO database reveals a pretty compelling case for Home Depot’s non-traditional trademark rights in the single color orange too (oldest to newest here, here, here, here, here, here, and here).
Having said that, given these unearthed USPTO examples, can you see an industry cluster argument beginning to form linking the color orange with home improvement businesses?
It will be interesting to see whether this possible beginning of a cluster grows or shrinks over time, keeping in mind that trademark rights are dynamic.