Archives for August 2017 | Intellectual property and business law blog

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Steve O'Donnell, Ph.D. Registered Patent Attorney

You mean you don't associate yellow with Cheerios

General Mills has been trying to register a trademark for a yellow box, since everyone knows only Cheerios comes in a yellow box, right?

Yeah, I thought it was a bit of a stretch too, but nothing ventured nothing gained.

To be fair, General Mills has tried to make a connection between the color and Cheerios, and I’ll admit that if I forgot how to read and wanted Cheerios I’d just look for the yellow box. But, they just don’t have substantially exclusive use of the color on cereal boxes. Too many other companies have been using yellow boxes for General Mills to be able to come in and trademark it. Maybe if they had tried to register the box color when Cheerios was first released they’d have a better chance, but still, it would be an uphill climb to convince the examiner that people will associate yellow with Cheerios instead of thinking yellow was merely decorative.

Interesting opinion by the TTAB. Well, interesting if you like trademark law or Cheerios.

Why would they want to register the color yellow? Were they really going to go after brands already using yellow for other products, even other cereal products? Probably not. But…I bet they would have gone after generic and store brand Cheerio-knock offs. You know the ones I mean, every popular brand name cereal has a generic version. Next time you’re in the cereal aisle look for these off-brands, notice they often pattern their packaging after that of the brand name. Some will go farther than that and even use similar logos or characters on their generic boxes. It’s obvious why they do that, just like it’s obvious why generic aspartame is in a blue package just like the Equal brand: they’re riding the coattails of the brand name’s trade dress. Trade dress which can be hard to protect in the best circumstances, and which now might be a little bit harder to protect.