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In a recent decision from the U.S. District Court in Kentucky, the Court ruled in favor of Deere & Co. in a trademark infringement lawsuit regarding the company’s green and yellow brand color combination. Deere brought the suit against FIMCO, Inc., a company that manufactures and markets sprayers under the brand name Ag Spray Equipment, asserting FIMCO’s use of the green and yellow on its equipment infringed on Deere’s federal trademark of the colors (check out the Ag Spray Equipment catalog to see use of the colors). Deere also alleged the use of the colors confuses the public as to the origin of the product and dilutes the value of the Deere brand.
According to an article in the Quad City Times, starting in the late 1980’s Deere registered a trademark for the green and yellow color combination for its agricultural tractors, lawn and garden tractors, trailers, wagons, and carts, and over the years filed for other trademarks of the color combination to protect additional Deere products.
According to a press release from Deere, the Court ruled in favor of Deere on all counts in the lawsuit, finding that FIMCO intentionally used the green and yellow color combination to create an association with the John Deere brand. The Court further found FIMCO’s use was likely to cause consumer confusion about whether Deere had manufactured or endorsed the agricultural equipment. FIMCO, Inc. is now permanently enjoined (in layman's terms prevented) from using the combination of green and yellow on their agricultural equipment sold in the United States (they can have all green or all yellow products but not both colors) and has 60 days to create a plan to comply with the injunction.
Given the success of John Deere in defending its trademarked brand colors, should you run out to trademark your product’s color(s)? The short answer is probably not. In order to trademark a color, the company must prove that consumers visually equate a specific color with that brand. This is not an easy legal standard to meet. Over the summer, General Mills lost a two-year legal battle to trademark the use of yellow on Cheerios boxes; too many other cereals were already using yellow on their boxes. According to an article in adweek, Judge Anthony R. Masiello explained in his decision, “[s]hoppers who are 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.” Even when a company is successful in acquiring a trademark, its use often has specific limits. For example, the 3M Corporation has successfully trademarked the color yellow, but only for Post-it notes. Additionally, once a company has acquired a trademark it may have to file legal action to defend its trademark, as was the case with John Deere.
For more information on the difference between a tradename and trademark and how to register both, check out this past post.