Color Blocking: How the Harmonization of Color Protection May Catalyze Color Depletion in Global Markets

Abstract

The Qualitex decision in 1995 inspired trademark reformation and harmonization worldwide for the protection of color marks. While protecting color trademarks has not created issues of market entry in domestic markets, the growth in the number of transnational market participants and an increased utilization of non-traditional branding may catalyze color depletion in international trade. After exploring how current advertising expenditure requirements and distinctiveness requirements affect the registrability and protection of a color mark, this Note offers potential global reforms to help minimize hurdles for smallscale transnational participants and the threat of international color depletion. Specifically, due to consumers’ increasing exposure to international brands through e-commerce, courts should give more deference to survey results on Internet platforms to establish distinctiveness in the brand’s relevant customer base. The proposals in this Note will benefit trademark owners and potential transnational market participants by ensuring that consumer confusion is based on actual market practices, which will in turn prevent color depletion by keeping widely used colors in the public domain. Ultimately, by remaining conscious of the facts and issues presented in this Note, attorneys, legislators, and trademark owners can ensure fair market competition and mitigate color depletion from taking place in transnational trade. * Managing Editor, Indiana Journal of Global Legal Studies, Volume 23; J.D. Candidate 2016, Indiana University Maurer School of Law; B.A. 2012, Queen’s University. I would like to thank Professors Mark Janis and Marshall Leaffer for their guidance and contributions during the drafting of this Note. I would also like to express my gratitude toward Kathleen Cullum for her invaluable support and assistance in the revision of this Note. Lastly, I would like to thank my mother for constantly inspiring me to challenge myself in life and in the legal profession, without which this Note would not be possible. This content downloaded from 157.55.39.217 on Tue, 06 Sep 2016 06:01:31 UTC All use subject to http://about.jstor.org/terms 294 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 23:1