Back when my daughter was in third grade, parents were invited to the classroom to talk about their jobs. I talked about trademarks and brands, discussing products they would appreciate, like HOT WHEELS miniature cars and AMERICAN GIRL dolls. At one point, I told the students that a color can be a trademark and that Mattel claims the right to the color pink as a trademark associated with their BARBIE products. A little girl named Emma spoke up and said, “That doesn’t seem fair that just one company can use a color.”

What Emma didn’t know was that she isolated the same issue that the U.S. Supreme Court had considered back in the 1990s. In Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995), the court resolved a split among the federal circuit courts of appeal when the court addressed the issue of whether a single color could be protected as a trademark under federal law.

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