Abstract:
Both the EU law and the US law allow registering single colors as trademarks. However, some judges and scholars have pointed out that this law would exhaust available colors, called "color depletion". The theory believes that trademarking single colors are problematic because first, it develops market entry barriers. With more and more single colors claimed as trademarks by incumbents, fewer color choices left for entrants. Second, color depletion increases consumer search costs. When more single colors are claimed, the distances between colors shrink and the boundaries between color trademarks will be blurred. Thereby consumers are more likely confused by similar color trademarks. Despite many theoretical studies on color depletion, there are no empirical studies to test whether, in practice, color depletion is severe or ignorable. This project fills this gap by measuring the color depletion situation through thousands of single-color trademarks recorded in the United States Patent and Trademark Office (USPTO). This project will report (1) the overall color depletion and the depletion speed per year, (2) color depletion per product/service class and per color category, and (3) color congestion within the same product/service class, measured by how many new color applications are rejected by already-registered colors due to the similarity. Based on this data analysis, the project will evaluate whether the color depletion in the US is severe or ignorable, further suggesting trademark offices, courts and policymakers on adjusting the threshold of trademarking single colors.
Xiaoren Wang received her J.S.D degree at the University of Illinois in May of 2019. Her doctoral research focused on the empirical study of aesthetic functionality in US trademark law. After that, she worked as a Max Web fellow (2019-2020) in the European University Institute and a Global Fellow (2020-2021) at New York University. Now she is a Research Associate at the CREATe Center, University of Glasgow. Her research interests include IP and cyber law, empirical studies, law and economics, law and psychology.
Participants are welcome to ask questions and take part in the discussion.
The InfoSoc Working Group is a forum where EUI members and external researchers working on research topics regarding social sciences and the information society present their own projects and interact with other scholars. All interested fellows, PhD researchers, professors and visiting academics are invited to participate.
The event will be held via Zoom. The joining details will be circulated upon registration.