Registration of color as a trademark
What to do in practice to register a color
An application for a 'naked' color without shape, logo, or packaging is reviewed by Rospatent according to a special scenario. The authority assumes that color by itself does not distinguish products — it is perceived as an object characteristic, not as a manufacturer identifier. To overturn this presumption, the applicant must follow a certain path.
- Fix the exact shade according to the Pantone system — without this, the examination will consider the application indefinite.
- Gather evidence of long-term and intensive use of the color in this exact shade: website, packaging, employee uniforms, retail store interiors, outdoor advertising.
- Order a sociological study with a clear question — do respondents associate this specific shade with a specific company, not with the product category in general.
- Confirm the volume of advertising investments and media presence over several years.
- Demonstrate consistency of use — without variations in shades, proportions, and combinations with other colors.
Sberbank followed this route for three years. The package of documents included dozens of verbal and figurative signs in green execution, evidence of using Pantone 349 on ATMs, the website, employees' uniforms, and branch decorations, as well as results of a social survey. Three years of waiting and such a volume of evidence — this is not an exception, but the norm for a successful application.
Why applications are rejected: Whiskas, Wildberries, Ozon, and the logic of rejections
Rospatent rejected Whiskas' registration of the violet Pantone 248C, citing a ruling that became widely quoted: 'Color is a characteristic of an object, not the object itself,' and noting that the submitted evidence of distinctiveness was insufficient. Wildberries went further and submitted a sociological survey according to which 79% of consumers associate the Pantone 254C violet color with the company. The court of intellectual property (case SI512/2022) did not believe this survey and pointed to the lack of distinctive capacity as such.
Ozon encountered the same logic: the application for the official blue color was rejected with the indication that the shade is widely used by other players in the electronic commerce and IT services sector, and therefore the consumer is unable to unambiguously associate this particular blue with a specific marketplace. Rospatent essentially repeated the arguments from the Wildberries case — the presence of the color in advertising does not equal recognition specifically as a sign of one company.
Other marketplaces also stumble on a similar scheme: widespread presence of color in advertising is not the same as the ability of consumers to distinguish a company from competitors using similar shades in the same product category. Rospatent and courts systematically distinguish between 'color is noticeable' and 'color is recognizable as specifically ours.'
A separate and less obvious reason for refusals is the erosion of protection by the applicant's own hands. A classic example is the story with the mark "New Pearl" (Sarma): the use of color in different variations of shade, proportions, and combinations with other elements of the packaging played against the company. Expertise and the court regarded this as evidence that the consumer does not rely on color, but on the overall set of elements — that is, color does not perform a standalone function of individualization.
Which colors will not be registered at all
There are categories for which the evidentiary basis will not help — the expertise will reject the application at the level of principle, not factuality.
- Natural colors of the product — color, which is a natural property of the product, cannot be monopolized by a single company. Orange for orange juice is an obvious example, but there is also a less noticeable one: Gillette tried to secure the silver color for razors, and received a rejection — the expertise deemed silver to be a common color of metal blades, determined by the material, not a marketing decision, and thus lacking independent distinctive capacity.
- Functional colors — if the color carries a technical or signaling function (red for fire extinguishers, yellow for construction machinery, road marking colors), registration is blocked by the doctrine of functionality: competitors should not be deprived of access to practically necessary solutions.
- Traditional and industry-specific colors — shades that have become associated with an entire product category (green for pharmacies, white for medicine), do not become privately owned.
- State and heraldic colors — combinations associated with flags, coats of arms, and official symbolism.
USA, EU, Russia: three different philosophies of color protection
This is where the main line lies, which is rarely explained in detail. All three jurisdictions formally recognize the possibility of protecting color, but require different conditions for this.
| Jurisdiction | Basic principle | What needs to be proven |
|---|---|---|
| USA | Second meaning as a mandatory condition | Acquired distinctive capacity through prolonged use, advertising, surveys. Turning point case — Qualitex v. Jacobson Products (1995), where the Supreme Court held: the green-gold color of ironing board coverings may be a trademark if there is a second meaning |
| EU | Accepts initial distinctiveness in rare cases | Theoretically, a color may be initially distinctive without prior use—but in practice, such cases are almost never encountered, and authorities require proof of distinctiveness |
| Russia | Second meaning as a strict requirement, applied conservatively | Full package: social survey with a direct question about association, ad volume, consistency of use, extended period—expertise and courts interpret requirements more strictly than American counterparts |
The difference is not declarative but practical: in the USA, a company knows in advance that the path is one — to accumulate evidence of the second meaning. In the EU, a theoretical window for initial protection exists, but it opens so rarely that it has little impact on applicants' strategies. Russian practice is closer to the American model, but is applied more strictly — court decisions regarding Wildberries, Whiskas, and Ozon show that even a substantial survey does not guarantee success.
As practice demonstrates, acquired distinctiveness
Cadbury spent three decades and tens of millions of dollars promoting the pink color — the slogan 'Think Pink', the pink panther mascot, decades of continuous advertising. In 1985 year, it was precisely the long-term effort that enabled Owens Corning to become the first American company to register a color as a trademark. This is not a story about a legal loophole, but a story about how second meaning is formed over decades, not within a quarter before filing an application.
The practical set of evidence accepted by government agencies and courts in different countries is quite stable:
- a sociological survey with a direct question about the association of the color with a specific brand, not with a product category;
- documented volume and duration of advertising campaigns;
- uniform use of one shade without variations or deviations;
- the presence of the color in all consumer touchpoints — from packaging to employee uniforms;
- the existence of related registered marks in the same color, enhancing recognizability.
What does this mean for business
Registration of a color is not a legal formality, but the result of multi-year marketing discipline that cannot be imitated before filing an application. A company that expects to obtain color protection within a year or two of active advertising will almost certainly receive a refusal using the same grounds as Wildberries or
What to do in practice to register a color
An application for a 'naked' color without shape, logo, or packaging is reviewed by Rospatent according to a special scenario. The authority assumes that color by itself does not distinguish products — it is perceived as an object characteristic, not as a manufacturer identifier. To overturn this presumption, the applicant must follow a certain path.
- Fix the exact shade according to the Pantone system — without this, the examination will consider the application indefinite.
- Gather evidence of long-term and intensive use of the color in this exact shade: website, packaging, employee uniforms, retail store interiors, outdoor advertising.
- Order a sociological study with a clear question — do respondents associate this specific shade with a specific company, not with the product category in general.
- Confirm the volume of advertising investments and media presence over several years.
- Demonstrate consistency of use — without variations in shades, proportions, and combinations with other colors.
Sberbank followed this route for three years. The package of documents included dozens of verbal and figurative signs in green execution, evidence of using Pantone 349 on ATMs, the website, employees' uniforms, and branch decorations, as well as results of a social survey. Three years of waiting and such a volume of evidence — this is not an exception, but the norm for a successful application.
Why applications are rejected: Whiskas, Wildberries, Ozon, and the logic of rejections
Rospatent rejected Whiskas' registration of the violet Pantone 248C, citing a ruling that became widely quoted: 'Color is a characteristic of an object, not the object itself,' and noting that the submitted evidence of distinctiveness was insufficient. Wildberries went further and submitted a sociological survey according to which 79% of consumers associate the Pantone 254C violet color with the company. The court of intellectual property (case SI512/2022) did not believe this survey and pointed to the lack of distinctive capacity as such.
Ozon encountered the same logic: the application for the official blue color was rejected with the indication that the shade is widely used by other players in the electronic commerce and IT services sector, and therefore the consumer is unable to unambiguously associate this particular blue with a specific marketplace. Rospatent essentially repeated the arguments from the Wildberries case — the presence of the color in advertising does not equal recognition specifically as a sign of one company.
Other marketplaces also stumble on a similar scheme: widespread presence of color in advertising is not the same as the ability of consumers to distinguish a company from competitors using similar shades in the same product category. Rospatent and courts systematically distinguish between 'color is noticeable' and 'color is recognizable as specifically ours.'
A separate and less obvious reason for refusals is the erosion of protection by the applicant's own hands. A classic example is the story with the mark "New Pearl" (Sarma): the use of color in different variations of shade, proportions, and combinations with other elements of the packaging played against the company. Expertise and the court regarded this as evidence that the consumer does not rely on color, but on the overall set of elements — that is, color does not perform a standalone function of individualization.
Which colors will not be registered at all
There are categories for which the evidentiary basis will not help — the expertise will reject the application at the level of principle, not factuality.
- Natural colors of the product — color, which is a natural property of the product, cannot be monopolized by a single company. Orange for orange juice is an obvious example, but there is also a less noticeable one: Gillette tried to secure the silver color for razors, and received a rejection — the expertise deemed silver to be a common color of metal blades, determined by the material, not a marketing decision, and thus lacking independent distinctive capacity.
- Functional colors — if the color carries a technical or signaling function (red for fire extinguishers, yellow for construction machinery, road marking colors), registration is blocked by the doctrine of functionality: competitors should not be deprived of access to practically necessary solutions.
- Traditional and industry-specific colors — shades that have become associated with an entire product category (green for pharmacies, white for medicine), do not become privately owned.
- State and heraldic colors — combinations associated with flags, coats of arms, and official symbolism.
USA, EU, Russia: three different philosophies of color protection
This is where the main line lies, which is rarely explained in detail. All three jurisdictions formally recognize the possibility of protecting color, but require different conditions for this.
| Jurisdiction | Basic principle | What needs to be proven |
|---|---|---|
| USA | Second meaning as a mandatory condition | Acquired distinctive capacity through prolonged use, advertising, surveys. Turning point case — Qualitex v. Jacobson Products (1995), where the Supreme Court held: the green-gold color of ironing board coverings may be a trademark if there is a second meaning |
| EU | Accepts initial distinctiveness in rare cases | Theoretically, a color may be initially distinctive without prior use—but in practice, such cases are almost never encountered, and authorities require proof of distinctiveness |
| Russia | Second meaning as a strict requirement, applied conservatively | Full package: social survey with a direct question about association, ad volume, consistency of use, extended period—expertise and courts interpret requirements more strictly than American counterparts |
The difference is not declarative but practical: in the USA, a company knows in advance that the path is one — to accumulate evidence of the second meaning. In the EU, a theoretical window for initial protection exists, but it opens so rarely that it has little impact on applicants' strategies. Russian practice is closer to the American model, but is applied more strictly — court decisions regarding Wildberries, Whiskas, and Ozon show that even a substantial survey does not guarantee success.
As practice demonstrates, acquired distinctiveness
Cadbury spent three decades and tens of millions of dollars promoting the pink color — the slogan 'Think Pink', the pink panther mascot, decades of continuous advertising. In 1985 year, it was precisely the long-term effort that enabled Owens Corning to become the first American company to register a color as a trademark. This is not a story about a legal loophole, but a story about how second meaning is formed over decades, not within a quarter before filing an application.
The practical set of evidence accepted by government agencies and courts in different countries is quite stable:
- a sociological survey with a direct question about the association of the color with a specific brand, not with a product category;
- documented volume and duration of advertising campaigns;
- uniform use of one shade without variations or deviations;
- the presence of the color in all consumer touchpoints — from packaging to employee uniforms;
- the existence of related registered marks in the same color, enhancing recognizability.
What does this mean for business
Registration of a color is not a legal formality, but the result of multi-year marketing discipline that cannot be imitated before filing an application. A company that expects to obtain color protection within a year or two of active advertising will almost certainly receive a refusal using the same grounds as Wildberries or
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