WASHINGTON — General Mills, Inc.’s effort to trademark the yellow background color of its Cheerios cereal boxes has been denied. In a ruling issued Aug. 22, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office said that a single-color mark is not inherently distinctive, and because General Mills failed to demonstrate acquired distinctiveness, the applied-for trademark fails to function as a mark.
In its original request for the trademark, General Mills stated that “consumers have come to identify the color yellow, when used in connection with the goods, comes from not only a single source, but specifically the Cheerios brand.” To support its claim, General Mills provided the U.S. Patent and Trademark Office with a range of evidence, including a survey and expert report.
The survey asked consumers who were shown an image of an unmarked, yellow, rectangular box “If you think you know, what brand of cereal comes in this box?” Nearly 53% of those surveyed identified the brand as Cheerios, according to General Mills.
But as part of its own findings, the Trademark Trial and Appeal Board found General Mills’ request lacking.
“We find the number and nature of third-party cereal products in yellow packaging in the marketplace to be sufficient to convince us that consumers do not perceive the color yellow as having source-indicating significance for the goods,” the board noted in the Aug. 22 filing. “Several of the third-party products in yellow packaging are offered by major competitors of applicant, and there is a substantial number of such products. Moreover, the number of third-party cereal products that use yellow as a predominant background color of their packaging suggests that the competitors may be exploiting an aspect of the packaging that has ‘intrinsic consumer-desirability’ rather than any secondary meaning the color may have.”
Ultimately, the board determined to dismiss General Mills’ request.“Applicant has proven that relevant customers are familiar with the yellow color of the Cheerios box; but the record also indicates that the color yellow is only one aspect of a more complex trade dress that includes many other features that perform a distinguishing and source-indicating function,” the board said. “When we consider the industry practice of ornamenting breakfast cereal boxes with bright colors, bold graphic designs, and prominent word marks, and the fact that customers have been exposed to directly competing products (toroidal oat cereals) and closely related products (other forms of breakfast cereal) in packages that are predominantly yellow, we are not persuaded that customers perceive applicant’s proposed mark, the color yellow alone, as indicating the source of applicant’s goods. We find that applicant has not demonstrated that its yellow background has acquired distinctiveness within the meaning of Section 2(f) and, accordingly, that applicant has not shown that this device functions as a trademark.”