In trademark law, some marks are “inherently distinctive”, meaning that they clearly identify a particular producer’s goods from day one — Kodak film being a classic example. Other marks must acquire distinctiveness through being associated with a particular producer’s goods over time; if I started selling Delicious brand cookies, I couldn’t stop other people from calling their cookies Delicious unless consumers associate the word “Delicious” with my cookies in particular.
Anyway, I’m reading a case wherein Scalia observes that colors can never be inherently distinctive. And I thought to myself, “well, the Colour Out of Space, maybe”. But really, in that case consumers need more protection than trademark law affords them.
Originally published on LiveJournal