I’m Dye-ing to Know


For those of you who frequent DuetsBlog, you’ll know that color trademarks are a common topic of discussion. Steve Baird posted an excellent and thought provoking post just recently discussing Louboutin’s efforts to litigate the boundaries of its rights in the color red. It is generally accepted that color trademarks can receive protection upon obtaining “secondary meaning” (i.e. by obtaining a status where consumers have come to recognize the color as identifying goods or services from a specific source), but there are certain roadblocks to registration. The most common roadblock to trademark colors is the doctrine of “functionality.” The functionality doctrine generally holds that if a feature gives a producer a competitive advantage which is not related entirely to its function as a brand identifier, then it cannot be trademarked.

Recently, I heard a news report on the radio about the purported adverse health impacts of food dyes and wondered whether this might eventually be an additional burden to trademark rights in colors. (Examples of the arguments against food dyes are here, here, and here.) As you will note from the articles, this is certainly not a new debate. But this most recent report sparked my interest because it quoted a woman as saying (and I’m paraphrasing) that, “Food dyes should be banned because they create potential health risks with absolutely no benefit.” I generally have a strong, visceral and negative reaction to unequivocal statements of absolutes, so I thought about it a little bit.

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