According fact to “Exxon” or “Xerox” because
Accordingto the shade confusion theory, there is a slight difference between colors,which it is difficult for a normal person to accurately distinguish with eyes;if a single color is allowed to be registered as a trademark, then severalhighly similar colors will be registered by different enterprises, and it willbe difficult for consumers to distinguish between the goods or services ofdifferent enterprises through color.1 Shade confusion is mostdifficult in confusion judgment. There are many factors that affect consumers’perception of color, such as light intensity and environment. As an important factor, lightintensity will result in the change in visual sense.
Due to the hardlycontrollable factors, there are differences between consumers’ color perceptionin different environments, and consumers will be uncertain about the colorsthey see. It could result in confusion. Therefore, it is always hard for thecourt to judge with regard to the fact that whether the use of similar colorsfor similar products will confuse consumers and thus result in trademark infringement.2 Thealleged bothering shade confusion has been criticized to a fiercest extent. Asto the “likelihood of confusion” must be madein every trademark infringement case.3 Deciding likelihood ofconfusion among color shades, is no more difficult or subtle than decidinglikelihood of confusion where word marks are involved.4 Accordingly, color is notan exception to confusion judgment, and has no difference from other elementsof a trademark.
Many marks are made-up words, such as “Exxon”or “Xerox.”Numerous homonyms can be created from our available letters. Would a court denyprotection before the fact to “Exxon” or “Xerox” because someone mightlater use “Ekson” or “Zerox?”5 Additionally,the shade confusion theory has the following defects: first, consumers’recognition capability is underestimated as some cautious consumers may findthe slight difference between similar colors. In relation to the argumentproposed by the theory that the external factors like light will affect colorperception, courts can replicate “lighting conditions underwhich a colored product is sold.”6 Some experts made an analysisfrom the perspective of photometry and colorimetry, considering it wasunnecessary to worry about people’s ability to distinguishbetween colors:Human color vision isaccomplished through the presence of cones in the human retina. For trademarklaw purposes, the important fact is that there are exactly three differentkinds of cones. Incident light of arbitrary wavelength mixture is perceived asa linear combination of absorptions, of varying proportions, on the threeclasses of cones.
Normal human color vision is thus characterized as beingtrichromatic because light from exactly three widely separated spectrallocations can be algebraically added in varying proportions to match theappearance of any other chromatic stimulus.7 Second,with the development of modern science and technology, people may make acomparison between colors which are difficult to recognize with some moderninstruments (such as color photometer); according to the natural law, correctcolor definition and different color systems, such as Focoltone, PANTONE, RALor RGB8 are determined. By virtueof the said instruments and color systems, it is not difficult to distinguishbetween different colors.
Inconclusion, in the opinion of the author, a neutral attitude should be heldlegally towards the judgment on whether a trademark is registrable.Fundamentally, the theories of color depletion and shade confusion wereproposed in consideration of public interest. They are based on the ground thatif single color trademarks are protected, the colors will be less in the publicarea and will give trademark holders unreasonable competitive advantages whichcan disturb the order of market competition. With the development ofprecedents, the court of the U.
S. has theoretically refuted the two theories,since both the two hold a part as the whole and have irreparable defects,making it impossible to constitute an absolute reason for prohibition ofregistration of single color and thus making them be finally abandoned with thedevelopment of trademark law. Therefore, without a defect that disenables it tobe registered as a trademark, like other elements, color itself may constitutea trademark. In addition to the functions of goods source, qualityassurance and advertising, a trademark has some cultural functions. That is, no publicorder and good custom shall be broken. In addition to free competition, publicorder and good custom that involve social order and public interest,consideration should also be given to the registrability of trademark fromtechnical point of view, that is, the distinctiveness and non-functionality oftrademark and the direct connection between trademark and goods or servicesmust be considered. Therefore, the above theories should apply to a singlecolor as a normal mark, which should not be totally denied so long as no freecompetition, public order and good custom are violated.
In connection with theuse of a single color as a trademark, problems which might be encountered inpractice are related to technology other than principle, and may be solved withimproved technical methods.1 ??, “???????????-?QualitexCo. v. Jacobson Prods. Co.
?????”, ??????,2014 (3), at 44 2 ??, “????????????——????????????”, ??????(2009),? 1?, at 1373 Thomas A. Schmidt, “Creating ProtectibleColor Trademarks”, 81 Trademark Rep., (1991) 285, at 2894 InRe Owens-corning Fiberglas Corporation, supra note 36, at 11235 Michael B. Landau, “Trademark Protectionfor Color Per Se after Qualitex Co. v. Jacobson Products Co.: Another Grey Areain the Law”, (1995), 2 UCLA Ent.
L. Rev. 1, at 146 Elizabeth A. Overcamp, “The QualitexMonster: The Color Trademark Disaster”, (1995), 2 J.
Intell. Prop. L. 595, at6157 Lawrence B. Ebert, “Trademark Protectionin Color: Do It by the Numbers”, (1994), 84 Trademark Rep.
379, at 4038supra note 42, GlendaLabadie-Jackson, “Through the Looking Hole of the Multi-Sensory TrademarkRainbow: Trademark Protection of Color Per Se across Jurisdictions: The UnitedStates, Spain and the European Union”, (2008), 7 Rich. J. Global L. & Bus.91, at 105