–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.

Continue Reading Color Marks & One Company’s Long Haul to Color Mark Protection

Spring is in the air (at least here in Minneapolis) and so are some fresh examples of look-for advertising that actually avoid the use of those straitjacket words.

As we have discussed before, look-for advertising is a powerful tool in developing non-traditional trademark rights in subject matter such as single color marks. Dan discussed it here

More on single color trademarks today. Eighteen months ago, Wolf Appliance obtained a federal trademark registration in connection with "a red knob or knobs" of "domestic gas and electric cooking appliances, namely, ranges, dual-fuel ranges, cooktops, and barbeque grills."

Wolf put its registration to the test a couple of weeks ago in a federal

A couple of weeks ago I posted an Accountemps billboard advertisement that prominently features what appears to be a 3M Post-it brand removable adhesive note, and I asked whether it constitutes fair use, and whether 3M’s permission is necessary to run the advertisement, since 3M owns a federal trademark registration for the color "canary yellow" in connection with these notes.

As the comments to that post reveal, some recognize the billboard image as a 3M Post-it note, and believe permission should be required to run the ad, others were unaware that 3M has a trademark on the color canary yellow, others believe that yellow adhesive notes are generic, and several apparently believe that even if the billboard depicts a 3M canary yellow Post-it note, no permission should be required. In fact, several pointed out that yellow adhesive notes can be obtained from a variety of sources, raising the question of how close those shades of yellow are to 3M’s trademarked canary yellow?

So, just for you, I collected six different pads of yellow-colored adhesive notes and fixed them to a dark green background for a little follow-up quiz. Can you identify any "canary yellow" and name the sources of the six different yellow adhesive notes shown below (answers below the jump)?

Continue Reading Does Your Eye Spy A Canary?