While in some instances color is capable of trademark protection, such as the use of pink insulation for Owens-Corning, Cheerios recently was unable to protect the color yellow for its Cheerios boxes.
The Trademark Trial and Appeal Board (TTAB) affirmed the refusal to register the color yellow on packaging for boxes of Cheerios cereal, which Cheerios described as a “toroidal-shaped, oat-based breakfast cereal.” The TTAB held that the color yellow on the Cheerios mark lacked acquired distinctiveness and failed to function as a trademark.
Since a single color applied to a product or its packaging can never be inherently distinctive, the burden was upon Cheerios to demonstrate that its mark had acquired distinctiveness.General Mills submitted evidence showing that it had expended over $1 billion in 10 years for advertising, had sales over 10 years that exceeded $4 billion, had utilized a television ad during the 2014 Super Bowl viewed by 111.5 million viewers and which was watched via millions of subsequent online views, and further submitted expert testimony and survey evidence.General Mills contended that its packaging for Cheerios had used the color yellow since the 1940s.
The TTAB noted that the market contained yellow-packaged cereals from various sources and not just for Cheerios.The TTAB further noted that customers seeing a color appearing on products from multiple sources are less likely to see that color as an indicator of source.Instead, in such cases, customers are likely to perceive the color on packages as a method to make the packages attractive and eye-catching.
The TTAB concluded that, while consumers were familiar with the yellow color of the Cheerios box, the color yellow was only one aspect of the complex Cheerios box trade dress.
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