General Mills Loses Bid To Trademark Yellow Color of Cheerios Box

The court's ruling on yellow was black and white. JL

David Kravets reports in ars technica:

The court ruled that consumers don't necessarily associate the yellow box of cereal with Cheerios. Consumers are confronted with a multitude of yellow boxes of oats cereal, the board noted. "A single color applied to a product or packaging may function as a trademark." But that's only if those colors have become "inherently distinctive" in the eyes of consumers. Some of those examples include UPS "Brown;" T-Mobile "Magenta;" Target "Red;" John Deere "Green & Yellow;" and Home Depot "Orange."
US intellectual property regulators are rejecting General Mills' bid to trademark the yellow background color on boxes of Cheerios cereal.
The Trademark Trial and Appeal Board on Tuesday set aside the cereal maker's two-year quest to trademark "the color yellow appearing as the predominant uniform background color" on boxes of "oat-based breakfast cereal." A contrary ruling could have given the Cheerios maker an exclusive right to yellow boxes of oat cereal.

General Mills loses bid to trademark this box of yellow "toroidal-shaped, oat-based breakfast cereal."

Trademark Trial and Appeal Board

General Mills argued that it deserved to be awarded the trademark status because "consumers have come to identify the color yellow" on boxes of oats cereal with "the Cheerios brand." It has been marketed in yellow packaging since 1945, with billions in sales.
The board noted that "there is no doubt that a single color applied to a product or its packaging may function as a trademark and be entitled to registration under the Trademark Act." But that's only if those colors have become "inherently distinctive" in the eyes of consumers. Some of those examples include UPS "Brown;" T-Mobile "Magenta;" Target "Red;" John Deere "Green & Yellow;" and Home Depot "Orange." It goes without saying that anybody can still use those colors predominately in their marketing, but not direct competitors.
Regarding the box of Cheerios, however, the court ruled that consumers don't necessarily associate the yellow box of cereal with Cheerios, despite General Mills' assertion to the contrary. Consumers are confronted with a multitude of yellow boxes of oats cereal, the appeal board noted. By comparison, T-Mobile has only a handful of competitors, and none of them uses the magenta color as a distinctive mark, the appeal board said.
"[C]ustomers, accustomed to seeing numerous brands from different sources offered in yellow packaging, are unlikely to be conditioned to perceive yellow packaging as an indicator of a unique source," the panel said, adding: "Rather, they are more likely to view yellow packaging simply as eye-catching ornamentation customarily used for the packaging of breakfast cereals generally."Trademarks have become a hot topic recently. Just last week, the Supreme Court was asked to nullify the Google trademark. And the justices ruled in June that trademarks with offensive names must be allowed.
The American Bar Association says a trademark "grants the right to use the registered trademark symbol: ®," allows a rights holder to sue for trademark infringement, and "acts as a bar to the registration of another confusingly similar mark."
General Mills did not immediately respond for comment.