Abstract
Can a brand own a color? Trademark says yes, with some caveats. A brand can own a color so long as the color points to the brand as the origin of the goods and is non-functional. One of these caveats, functionality, is increasingly relevant because of color's value for our pop culture. Color is a common cultural resource, and whether it is a pink Barbiecore summer or a BRAT green summer, the colors brands remix to communicate the origins of their goods become a part of consumers' expressions of identity and their links to communities and help embody consumer values. To compete for these consumers, brands need to access the colors that matter to them. We have a test in trademark law, aesthetic functionality, that filters colors linked to traditional cultural events like Valentine's Day and Halloween out of a brand's control. But aesthetic functionality overlooks pop culture because pop culture may be closely connected to a brand's reputation. Aesthetic functionality's failure to fully consider brands' cultural presence compromises consumers' access to culture today and, by extension, has a negative effect on competition for consumers' attention. In this Article, I argue that we need an additional functionality defense, cultural functionality, to filter time-sensitive pop cultural uses of branded colors out of trademark infringement at specific moments in time, so all brands can compete for consumers' attention because of the importance of these pop culture moments on the market.
Included in
Advertising and Promotion Management Commons, Business Law, Public Responsibility, and Ethics Commons, Commercial Law Commons
