According fact to “Exxon” or “Xerox” because

According
to the shade confusion theory, there is a slight difference between colors,
which it is difficult for a normal person to accurately distinguish with eyes;
if a single color is allowed to be registered as a trademark, then several
highly similar colors will be registered by different enterprises, and it will
be difficult for consumers to distinguish between the goods or services of
different enterprises through color.1 Shade confusion is most
difficult in confusion judgment. There are many factors that affect consumers’
perception of color, such as light intensity and environment. As an important factor, light
intensity will result in the change in visual sense. Due to the hardly
controllable factors, there are differences between consumers’ color perception
in different environments, and consumers will be uncertain about the colors
they see. It could result in confusion. Therefore, it is always hard for the
court to judge with regard to the fact that whether the use of similar colors
for similar products will confuse consumers and thus result in trademark infringement.2

 

The
alleged bothering shade confusion has been criticized to a fiercest extent. As
to the “likelihood of confusion” must be made
in every trademark infringement case.3 Deciding likelihood of
confusion among color shades, is no more difficult or subtle than deciding
likelihood of confusion where word marks are involved.4 Accordingly, color is not
an exception to confusion judgment, and has no difference from other elements
of a trademark. Many marks are made-up words, such as “Exxon”
or “Xerox.”
Numerous homonyms can be created from our available letters. Would a court deny
protection before the fact to “Exxon” or “Xerox” because someone might
later use “Ekson” or “Zerox?”5

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Additionally,
the shade confusion theory has the following defects: first, consumers’
recognition capability is underestimated as some cautious consumers may find
the slight difference between similar colors. In relation to the argument
proposed by the theory that the external factors like light will affect color
perception, courts can replicate “lighting conditions under
which a colored product is sold.”6 Some experts made an analysis
from the perspective of photometry and colorimetry, considering it was
unnecessary to worry about people’s ability to distinguish
between colors:

Human color vision is
accomplished through the presence of cones in the human retina. For trademark
law purposes, the important fact is that there are exactly three different
kinds of cones. Incident light of arbitrary wavelength mixture is perceived as
a linear combination of absorptions, of varying proportions, on the three
classes of cones. Normal human color vision is thus characterized as being
trichromatic because light from exactly three widely separated spectral
locations can be algebraically added in varying proportions to match the
appearance of any other chromatic stimulus.7

 

 

Second,
with the development of modern science and technology, people may make a
comparison between colors which are difficult to recognize with some modern
instruments (such as color photometer); according to the natural law, correct
color definition and different color systems, such as Focoltone, PANTONE, RAL
or RGB8 are determined. By virtue
of the said instruments and color systems, it is not difficult to distinguish
between different colors.

 

In
conclusion, in the opinion of the author, a neutral attitude should be held
legally towards the judgment on whether a trademark is registrable.
Fundamentally, the theories of color depletion and shade confusion were
proposed in consideration of public interest. They are based on the ground that
if single color trademarks are protected, the colors will be less in the public
area and will give trademark holders unreasonable competitive advantages which
can disturb the order of market competition. With the development of
precedents, the court of the U.S. has theoretically refuted the two theories,
since both the two hold a part as the whole and have irreparable defects,
making it impossible to constitute an absolute reason for prohibition of
registration of single color and thus making them be finally abandoned with the
development of trademark law. Therefore, without a defect that disenables it to
be registered as a trademark, like other elements, color itself may constitute
a trademark.

 

In addition to the functions of goods source, quality
assurance and advertising, a trademark has some cultural functions. That is, no public
order and good custom shall be broken. In addition to free competition, public
order and good custom that involve social order and public interest,
consideration should also be given to the registrability of trademark from
technical point of view, that is, the distinctiveness and non-functionality of
trademark and the direct connection between trademark and goods or services
must be considered. Therefore, the above theories should apply to a single
color as a normal mark, which should not be totally denied so long as no free
competition, public order and good custom are violated. In connection with the
use of a single color as a trademark, problems which might be encountered in
practice are related to technology other than principle, and may be solved with
improved technical methods.

1 ??, “???????????-?Qualitex
Co. v. Jacobson Prods. Co.?????”, ??????,
2014 (3), at 44

 

2 ??, “????????????——????????????”, ??????(2009),? 1?, at 137

3 Thomas A. Schmidt, “Creating Protectible
Color Trademarks”, 81 Trademark Rep., (1991) 285, at 289

4 In
Re Owens-corning Fiberglas Corporation, supra note 36, at 1123

5 Michael B. Landau, “Trademark Protection
for Color Per Se after Qualitex Co. v. Jacobson Products Co.: Another Grey Area
in the Law”, (1995), 2 UCLA Ent. L. Rev. 1, at 14

6 Elizabeth A. Overcamp, “The Qualitex
Monster: The Color Trademark Disaster”, (1995), 2 J. Intell. Prop. L. 595, at
615

7 Lawrence B. Ebert, “Trademark Protection
in Color: Do It by the Numbers”, (1994), 84 Trademark Rep. 379, at 403

8
supra note 42, Glenda
Labadie-Jackson, “Through the Looking Hole of the Multi-Sensory Trademark
Rainbow: Trademark Protection of Color Per Se across Jurisdictions: The United
States, Spain and the European Union”, (2008), 7 Rich. J. Global L. & Bus.
91, at 105