U.S. corporations can now own colors. In a reversal of traditional trademark laws, the U.S. Court of Appeals for the Federal Circuit has opened the way for firms to get exclusive rights to make, say, purple mittens or orange lawn furniture. But it will be an expensive undertaking for those companies.
The precedential ruling came Oct. 8 in a 2-1 vote on a bid by Owens-Corning Fiberglass Corp. to register as a trademark for home insulation the color pink. The company has used the color on its product since 1956, and much of the $42-million worth of advertising Owens-Corning has spent since then featured the color.
When Owens-Corning tried to register the color as a trademark, the Patent Office said no, and the Trademark Trial and Appeal Board agreed. The board said that it could conceive of circumstances under which a color could be registered as a trademark, but that the insulation maker simply had not shown a distinctive claim to pink. The appellate court went further and laid out an easier test for a trademark applicant to meet.
Essentially, Judge Pauline Newman said that once a manufacturer has established a link in the mind of the buying public between his product and a particular color, the manufacturer should get trademark protection, as long as it does not put competitors at a profound disadvantage. The trademark could be denied if there was a real utilitarian reason for using a particular color: no company is likely to get the sole right to turn out grey sunglasses, for instance. And there have to be enough alternatives available to leave competitors a wide range of choices. If a material would take only two kinds of dye, a company could not lock up one of them.
Establishing the link between a color and a brand, however, may not be easy. Owens-Corning could show the result of consumer surveys that found over half the public named the company as the source of pink insulation. Few companies have used a distinctive color for their entire line for so long, or spent as much to solidify the tie between color and product.
That, of course, may change as a result of the Owens-Corning decision. As Jean Bissell, the dissenting judge on the panel, points out, precedents should have led companies to believe that they could not get trademark protection for a color. Now that the possibility is open, new marketing schemes can be expected to take advantage of it.
In other cases, courts ruled that:
*Federal rules to protect miners who blow the whistle on unsafe working conditions are so tough they are unconstitutional. The U.S. Court of Appeals in Cincinnati threw out regulations of the Federal Mine Safety & Health Review Commission that insisted that operators put back on the job any worker with a claim that the firing was in retaliation for complaints about safety conditions. The regulation called for a hearing within five days, but the judges say that put cart before horse, and that mine owners cannot be ordered to reinstate fired workers until management has a chance to tell its side. (Southern Ohio Coal v. Donovan, Oct. 2)
*Legislators have less protection from judicial probing into their activities than they may have thought. The U.S. Constitution and many state charters give lawmakers immunity from suits based on legislative activities, but there is little clear law on how far that protection extends.
Twelve years ago, the U.S. Court of Appeals in Richmond told courts that as long as legislators claimed the acts were part of the legislative process, there could be no inquiry into the claims. Now, the U.S. Court of Appeals in Philadelphia rejects that reading, saying that when there is a question of whether an activity is part of trying to gather information and develop a statute, a case can go forward until it is clear whether the immunity claim is a sham. The ruling allows fraud prosecution of a Virgin Islands legislator who billed a trip the local government says was personal. (Virgin Islands v. Lee, Oct. 18)