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In
1995, the United States Supreme Court refuted the theory of “color
depletion” in the case in which Qualitex1 was
involve.
Qualitex Company has for years colored the dry cleaning press pads
it manufactures with a special shade of green gold. The court stated
that the “depletion” argument is unpersuasive,
however, largely because it relies on an occasional problem to justify a
blanket prohibition. When a color serves as a mark, normally alternative colors
will likely be available for similar use by others.2

 

First,
there are thousands of color created under the condition of modern technology,
among which hundreds may be recognized by people. For most of producers, these
colors are enough and will not be depleted. Undoubtedly, in extremely special
circumstances, there are limited colors for competitors to use on some goods or
services, and a color allowed to be registered as a trademark will be
monopolized by a producer, making it impossible for its competitors to find a
substitute and leaving them at a disadvantage. However, this happens in extreme
cases, and a great deal of colors are available in general fields. That’s
why it is unreasonable to fully deny the registration of a single color due to such
extreme cases.

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Second,
instead of monopolizing a color, a color trademark allows other merchants to
use the color in a manner that differs from that in which the person who owns
the prior right does. To register a mark as a trademark, the category of goods
or services to which it applies must be specified for protection in connection
with the specified category other than all goods or services. There is a
limited number of goods or services to which most trademarks apply, of which
the producers or providers are also limited in number, making it impossible to
have infinite demands for color trademarks in an industry. Additionally, the
use of a color not commonly used in an industry on a product or service might
increase cost, and not all producers are willing to pay and may afford an extra
cost for a special color. Although official statistics do not offer a clear
picture of what has occurred, the available evidence suggests that Qualitex did
not result in a significant increase of filings corresponding to this type of application.3 Therefore, from the
perspective of producers, it is impossible to deplete colors.

 

Second,
the theory of “color depletion” fails to fully
consider the acquired distinctiveness for a color trademark. The threshold for single color
trademarks of distinctiveness is higher than that for other marks. According to
the enterprises who have completed the registration of color trademarks
practically, in addition to a large number of money and efforts, long-term
advertising and use is required to cause a color to be distinctive. Generally,
only a minority of advantageous enterprises is capable of finishing this, which
requires abundant funds and good profitability. For the purpose of acquired
distinctiveness, it is necessary to use a color on a continuous basis for a
long time, and with the innovative development of product, a few companies are
capable of using a color for consecutive years, and it is difficult for many
companies to use a single color in the process of development. Therefore, so
long as the color mark meets the ordinary requirements of trademark law,
including use in commerce, acquired distinctiveness, indication of source, and
nonfunctionality4,
it is not worth considering about the depletion.

 

Finally,
in the market economy, optimal allocation of resources is realized through
competition and survival of the fittest; given that a company who owns a single
color trademark is eliminated through market competition, the trademark will be
cancelled, following which any of other companies may apply for registration of
the color as a trademark.

1 Qualitex Co. v.
Jacobson Products Co., 514 U.S. 159 (1995)

2 Qualitex Co. v. Jacobson Products Co., 514
U.S. 159 (1995), at 168

3 Glenda Labadie-Jackson,
“Through the Looking Hole of the Multi-Sensory Trademark Rainbow: Trademark
Protection of Color Per Se across Jurisdictions: The United States, Spain and
the European Union”, (2008), 7 Rich. J. Global L. & Bus. 91, at
98

4 Danielle E. Gorman, “Protecting Single
Color Trademarks in Fashion after Louboutin”, (2012), 30 Cardozo Arts &
Ent. L.J. 369, at 374

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