September 18, 2009, Newsletter Issue #185: Patent vs. Trademark

Tip of the Week

It might seem absurd, if not impossible, to protect a color. But some colors intrinsic to the utility or design of a product have merited protection by the US Patent and Trademark Office.

Whether or not a color, or for that matter, texture, sound, or smell is patentable depends on the type of patent your intellectual property falls under, and whether the color has a useful purpose or exists for design purposes only.

If filing for a utility patent, the color can be protected only if it has a purpose. For example, red might be a patentable improvement for fire engines because the color has a useful purpose – to help identify the fire engine to other vehicles and pedestrians.

If the color has no utility, but is intrinsic to the design of the product or is distinct to the brand's recognition, the color could be protected under trademark law. And, many products have simultaneously filed for a patent to protect their product and a trademark to protect the product's marketable distinctions. The pink of Owens Corning insulation is a good example of a color that is distinct to the brand's recognition without having utility.

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