Over the long history of United States trademark law, [FN1] few principles were as “black and white” as the prohibition against protection for color alone. While color, when combined with words, designs, symbols or other arbitrary and distinguishing matter, may be protectible, color per se is not - or was not.

The color per se rule is founded on two major policy considerations. First, there is concern that since the number of colors is limited, to grant exclusive rights in colors would soon deplete the available stock and, thus, be anticompetitive. Second, there is concern that if color per se is protectible, trademark infringement suits would soon denigrate into questions of shade confusion that the judiciary is ill-equipped to resolve.

But, in 1985, the United States Court of Appeals for the Federal Circuit held in In re Owens-Corning Fiberglas Corp. that the color “pink” for home insulation was registrable as a trademark. This holding reverberated throughout the legal and business communities and was thought to represent a major change in the law.

Since Owens-Corning was decided, a number of other courts considered the issue of whether color per se is registrable as a trademark. This article will examine to what extent the Owens-Corning decision is being followed in other jurisdictions. The basic conclusion is that Owens-Corning did not result in widespread trademark protection for color per se. Some courts refuse to follow Owens-Corning and it is still the extraordinary case in which the overall color of a product is protected. In a sense, then, Owens-Corning may best be viewed as being of mixed precedential value. This article also proposes an amendment to the Lanham Act which would increase the likelihood that Owens-Corning would be followed in appropriate fact situations.