Under 1202.05(d) Drawings of Color Marks Required, the USPTO requires color marks to be “visual” and that they should be “depicted in color drawings.” These color drawings must be accompanied by: “(1) a color claim naming the color(s) that are a feature of the mark; and (2) a separate statement naming the color(s) and describing where the color(s) appear and how they are used on the mark.” emphasis added 37 C.F.R. §2.52(b)(1).

The manual goes onto to require that “[t]he description of the mark must be clear and specific, use ordinary language, and identify the mark as consisting of the particular color as applied to the goods or services.” 1202.05(e) Written Descriptions of Color Marks. Furthermore, if the mark includes gradations, the description should indicate the shade of color in ordinary language, “for example, ‘maroon,’ ‘turquoise,’ ‘navy blue,’ ‘reddish orange.’” Id. Finally, the most relevant part of this section for our purposes states that a description “is required even if the applicant also describes the color using a commercial coloring system.” Id. (emphasis added). This is the USPTO ignoring color coding systems while simultaneously acknowledging their existence and use by registrants.

Today, most companies include a color code like RGB, CMYK, HEX, or PMS code when they describe their trade dress or brand. For example, in Post-it’s Brand Guidelines Quick Reference Guide, they claim that their trade dress is “defined” by these colors: Post-it Brand Yellow (C:0 M:35 Y:100 K:0 / R:255 G:143 B:0), Process Black (C:0 M:0 Y:0 K:100 / R:0 G:0 B:0), Post-it Brand Process Yellow (C:0 M:0 Y:100 K:0 / R:225 G:241 B:0), and Post-it Brand Hero Yellow (C:0 M:5 Y:50 K:0 / R:255 G:218 B:100).[12]

There are two important things to note here. First, the codes for both Process Black and Post-it Brand Process Yellow are essentially the color codes for the purest form of black and yellow. If you look at the CMYK code for these colors, you will notice that every color is “0” except for the black and yellow numbers, indicating Post-it is defining its trade dress by the purest forms of the colors black and yellow.

Second, if you go to Post-it’s actual trademark registration you will see that Post-it only has rights to the color “yellow,” exactly where on the yellow spectrum it falls is not being determined by the USPTO, but rather by the company itself.[13] Essentially, Post-it is advertising to its consumers, competitors, and to its employees that its trade dress is defined by these very specific colors. In reality, and legally, they only own the right to use the color “yellow.” Again, it is unclear whether this is the yellow as defined by Post-its guidelines or if it includes the whole spectrum of yellow shades. Unfortunately, the USPTO has given no real clarification to where yellow stops and where a color like orange begins. All one has to do is look at the two versions of yellow that Post-it uses to define its trade dress to see that there is a discrepancy between what Post-it thinks it owns and what the USPTO thinks it owns.

The RGB or CMYK system, or any commercial coding system, could alleviate a lot of the issues surrounding color in trademarks and color marks and would help bring the USPTO up to speed with the practices of the business and people that register with them. In adopting a new method for registering colors, the USPTO could use any of the current coding systems, a combination of them, or they could create their own. Since different codes are widely-used for different purposes, perhaps the USPTO can adapt their system for the four most popular systems – RGB, CMYK, HEX, and PMS. When an applicant’s product is intended to be printed then they can use PMS or CMYK and if they intend their logo to be displayed on computer or TV screens, then they can use RGB or HEX, or some form therein.

According to the Trademark Act of Japan (Act No. 127 of 1959, as amended), single color marks are registrable in Japan as “color marks per se.”. An application for a color mark shall state that the proposed mark is a color or color combination. Id., at Art. 5, ¶ 1. For a single color mark, the applicant should provide either: “(i) a drawing or a photo indicating the applied-for color, or (ii) a drawing or photo indicating the place where the color is used in the relevant product with the object appearing in dotted lines.” Id.  Further, and like in China, the applicant should provide a description of the color by indicating the RGB or PMS system. supra n. 20.

Now, in 2018, it is time for the USPTO to embrace the objectives of the Lanham Act and go from black and white to technicolor to RGB/CMYK.