–Susan Perera, Attorney
I was surprised to see the six registrations pictured above for color marks come out of the USPTO this month. And I bet that most of you can identify the owner of these marks without even checking the registrations. (If you must, registrations: here, here, here, here, here, here, and here.)
Although I wouldn’t consider my childhood one of rural Minnesota, I have still been aware of, and associated, the distinctive green and yellow colors on lawn and tractor equipment with John Deere for as long as I can remember. In fact, I would consider John Deere’s use of color as distinctive as any of the textbook examples (e.g. UPS brown or Owens-Corning pink). Thus, I was quite surprised to see Deere has just now received trademark registrations for some of these color marks.
A little research shows that even the most respected name in lawn and tractor equipment can face an uphill battle to protect its brand. Deere has spent almost 3 decades parsing out the law of color marks and achieving federal registrations for its equipment bearing “John Deere Green” and “John Deere Agricultural Yellow.”
A short summary of Deere color mark history:
- June 1982 – Deere sought to stop a competitor from using green and yellow on tractor attachments by way of an unfair competition claim. The court held that green and yellow were aesthetically functional and barred any relief.
- March 1982 – Deere filed an application for a horizontal yellow stripe on a green machine hood or panel. Reg. No. 1,254,339
- December 1985 – Deere filed an application for a green vehicle body or frame with yellow wheels. Reg. No. 1,502,103
- December 1985 – Deere filed an application for the colors bright green and bright yellow in connection with wheeled agricultural lawn and garden machines. Reg. No. 1,503,576
- March 1988 – Trademark Trial & Appeal Board grants registration for 1985 marks originally refused registration based on aesthetic functionality of marks.
- February 2004 – Deere sought to stop competition for making yard and garden equipment also bearing green and yellow colors. The court held that Deere could not inhibit the competitor from using the colors green and yellow in the abstract.
- February 2005 – Deere filed an application for agricultural and lawn tractors consisting of a green vehicle and a yellow seat. Reg. No. 3,132,124
- 2010 – Deere filed applications for more than a dozen color claims in connection with a variety of machines.
After the jump a discussion of color trademarks and Deere’s role in the history of trademark color law.