Dec 23, 2020
On December 15, 2020, the U.S. Patent and Trademark Office (USPTO) issued a new trademark registration to direct-to-consumer beauty brand startup Glossier for “the color pink as applied to the inner surface of portions of boxes that contrast with the color of the rest of the boxes, which form packaging for the goods.” With this landmark decision, Glossier’s “millennial pink” is poised to join the ranks of colour branding powerhouses like Tiffany’s robin’s egg blue boxes and the lacquered red soles of Christian Louboutin’s shoes.
In a recent article, commentator The Fashion Law outlines the history of Glossier’s trademark application which was originally submitted to the USPTO in May 2019 and sought protection for “the color pink … as a feature of the mark which is displayed on boxes.” In response to the USPTO’s pushback, Glossier amended the description of the mark to refer more specifically to the contrasting colour on the inside of boxes housing its products.
Also, following the USPTO’s initial refusal, Glossier argued that its pink packaging had acquired distinctiveness and that “when consumers see the Pink Box, they immediately recognize it as emanating from Glossier.” In discussing the issue of distinctiveness, The Fashion Law refers to an article written by May Cheng, partner in Osler’s Intellectual Property Group, and Maryna Polataiko that first appeared in The Lawyer’s Daily. In that article about the protection of colour marks, May and Maryna assert that the “hurdle” that is acquired distinctiveness “may be difficult to overcome for less-established brands or those with lower brand consistency” – a challenge that The Fashion Law suggests might still apply to companies like Glossier, even as it “continues to build up its trademark portfolio.”
To learn more about this colourful subject, read the full article, “Glossier now has a trademark registration for its millennial pink-lined product packaging” in The Fashion Law from December 16, 2020.