Trademarks

A Shade of Green-Gold: Qualitex v. Jacobson and the Trademarking of Color Alone

A unanimous Supreme Court held that a single color can serve as a trademark once it acquires secondary meaning, while making functionality the gatekeeper that keeps color from becoming a competitive chokehold.

February 10, 2025
A close-up of a green-gold colored fabric pad against a neutral background
Qualitex used a distinctive green-gold on the press pads it sold to dry cleaners; the Court asked whether that color, standing alone, could be owned as a mark. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

There is something faintly improbable about owning a color. Colors are finite, they are the raw material of every product’s appearance, and they exist long before any company decides to sell something. Yet in Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (No. 93-1577, decided March 28, 1995), a unanimous Supreme Court held that a single color can indeed function as a trademark. Justice Breyer, writing for the Court in one of his earliest opinions, reversed the U.S. Court of Appeals for the Ninth Circuit and settled a question that had divided the federal courts for years: whether color, all by itself, can identify and distinguish a brand. The answer was yes—but the opinion is at least as important for the limit it built into that answer as for the permission it granted.

At a glance

  • Case: Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995); No. 93-1577 (decided Mar. 28, 1995).
  • Court: U.S. Supreme Court; Justice Breyer writing for a unanimous Court.
  • Posture: Trademark infringement and unfair-competition action; the Ninth Circuit had set aside Qualitex’s trademark on the theory that color alone cannot be registered, and the Supreme Court granted certiorari to resolve a split among the circuits.
  • Holding: Under the Lanham Act, a color may be registered and protected as a trademark when it has acquired secondary meaning and is not functional.
  • Status: Ninth Circuit reversed.

The dispute over a dry-cleaning pad

The facts are humble, which is part of the case’s charm. Since the 1950s, Qualitex had colored the press pads it made for dry-cleaning establishments a particular green-gold. In 1989 a competitor, Jacobson Products, began selling its own press pads in a confusingly similar green-gold shade. Qualitex sued for unfair competition, then obtained a federal trademark registration for the color and added an infringement count. The district court in the Central District of California ruled for Qualitex. The Ninth Circuit reversed the infringement judgment on a single categorical ground: in its view, the Lanham Act does not permit registration of color alone. Because other circuits had reached the opposite conclusion, the Supreme Court took the case to harmonize the law.

The narrowness of the question is worth emphasizing. No one doubted that Qualitex’s green-gold actually worked as a source identifier in the marketplace—the trial court had so found. The only issue was whether color was the kind of thing the statute could ever protect. That made Qualitex a clean vehicle for a question of pure doctrine.

Why “almost anything” can be a symbol

Justice Breyer’s reasoning begins with the breadth of the statutory text. The Lanham Act defines a trademark to include “any word, name, symbol, or device, or any combination thereof” used to identify and distinguish goods. The Court read that language expansively, observing that human beings “might use as a ‘symbol’ or ‘device’ almost anything at all that is capable of carrying meaning.” A color, the Court reasoned, is no different in principle from a fanciful word or a distinctive shape. Over time, customers can come to treat a particular shade as a signal that a product comes from a particular maker.

The doctrinal mechanism that converts a color into a mark is secondary meaning—the same concept that governs descriptive words and product-design trade dress. A color is not inherently distinctive; green-gold says nothing about source the first time a customer sees it. But if, through use and time, consumers come to associate that shade with a single producer, the color acquires the source-identifying significance the law protects. The Court drew an explicit analogy to descriptive terms like “the personal name ‘Smith,’” which cannot be exclusively owned at the outset yet may earn protection once the public links the term to one source. Color, the Court concluded, occupies the same position: never inherently distinctive, but capable of distinctiveness over time.

This holding fit comfortably with the Court’s broader trajectory in trade-dress law. Three years earlier, in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), the Court had confirmed that the overall look of a business could be protected under the Lanham Act. Qualitex extended the same generous reading of “symbol” to one of trade dress’s most elemental components.

Functionality as the indispensable limit

The more consequential half of the opinion is the constraint. Recognizing that a competitor could be seriously disadvantaged if rivals could lock up useful or attractive colors, the Court anchored its holding to the functionality doctrine. A feature is functional, and therefore cannot be a trademark, if it is “essential to the use or purpose of the article” or “affects the cost or quality of the article.” The rule exists to keep trademark law—whose protection is potentially perpetual—from doing the work of patent law, which grants only a limited monopoly over useful inventions and then dedicates them to the public.

Qualitex is also a foundational source for what later became known as aesthetic functionality. The Court acknowledged that a color can be functional even when it serves no mechanical purpose, if exclusive use of the color would put competitors at a significant non-reputation-related disadvantage. The Court’s own example has become canonical: a maker of artificial gold-leaf decoration could not monopolize the color gold, because gold is essential to imitating gilding. To guard against this, the Court endorsed the color depletion concern as a matter to be policed through functionality rather than through a flat ban. If granting trademark rights in a color would leave competitors without an adequate range of alternatives, the color is functional and unprotectable. Green-gold on a dry-cleaning press pad raised no such problem; the shade served only to identify Qualitex, and many other colors remained available to rivals.

The interplay is the heart of the decision. Distinctiveness opens the door to protecting a color; functionality is the doorkeeper that slams it shut whenever protection would harm competition rather than merely reward goodwill. Six years later the Court would sharpen the functionality test in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), but the analytic structure—distinctiveness plus a functionality bar—traces directly to Qualitex.

Open questions

  • How much secondary meaning, and proved how? Qualitex requires acquired distinctiveness for color but says little about the quantum or kind of proof. Surveys, length of use, advertising, and “look-for” promotion all matter, yet the threshold for a color—often perceived as mere ornamentation—remains contested.
  • Where exactly does aesthetic functionality bite? The Court endorsed the concept but left its contours soft. Lower courts still struggle to decide when a color is “merely” decorative versus when exclusivity would impose a real competitive disadvantage.
  • Does color depletion ever justify a categorical refusal? The Court folded depletion into functionality rather than treating it as an independent bar. Whether some markets are so color-constrained that depletion alone should defeat registration is unresolved.

Implications

  • Color is registrable—but never for free. Applicants must build and document secondary meaning; a color claimed at launch will fail for want of distinctiveness.
  • Functionality is the live battleground. Most color-mark disputes now turn not on whether color can be a mark but on whether the particular color is functional in the relevant market.
  • Aesthetic functionality has teeth. Colors that signal a product attribute—safety orange, agricultural-equipment color conventions, or colors that consumers expect—face a serious functionality challenge.
  • Markets with few usable colors are perilous. Where the palette is naturally narrow, the color-depletion concern resurfaces inside the functionality inquiry and can defeat protection.
  • Single-color claims should be paired with “look-for” evidence. Advertising that teaches consumers to treat the color itself as a brand signal is the most direct route to the secondary meaning Qualitex demands.

Frequently asked questions

Can a company trademark a color by itself? Yes. Qualitex holds that a single color can be a trademark, but only after it has acquired secondary meaning—proof that consumers associate the color with one source—and only if the color is not functional.

What stops a company from monopolizing useful colors? The functionality doctrine. A color that is essential to a product’s use, that affects its cost or quality, or whose exclusive use would put competitors at a significant non-reputation-related disadvantage is functional and cannot be protected, no matter how distinctive it has become.

How does Qualitex relate to later trade-dress cases? It supplied the framework—distinctiveness plus a functionality bar—that the Court refined in TrafFix Devices v. Marketing Displays and that lower courts apply to color, product configuration, and other forms of trade dress.

Authorities and sources