Should We Worry About Color Depletion? An Empirical Study of USPTO Single-Color Trademark Registrations

TY - JOUR

T1 - Should We Worry About Color Depletion?

T2 - An Empirical Study of USPTO Single-Color Trademark Registrations

AU - Wang, Xiaoren

PY - 2025/5

Y1 - 2025/5

N2 - Trademark law across the US, EU and UK allows companies to register single colors as trademarks, thereby preventing competitors from using similar colors in the related markets. However, this law might lead to the issue of color depletion: when more single colors are registered as trademarks, fewer colors are available for new entrants. With fewer color options left, color depletion can create market entry barriers and impose anticompetitive costs on new entrants. Existing psychological and marketing research suggests that regional depletion -- color concentration -- is possible on business preferred colors. And theoretical debates have centered on whether color depletion is severe in practice. However, there is no quantitative empirical research assessing the actual severity of color concentration and depletion. This study is the first to conduct a quantitative investigation on the extent of color concentration and depletion. It innovatively uses Python program to code and analyze 858 single-color trademarks across 45 good/service classes recorded in the United States Patent and Trademark Office (USPTO). The study finds out registrations are primarily concentrated in the red hue segment and in color areas with high brightness and high saturation. Substantial depletion is estimated in certain classes: 41% of the color space has been registered in Class 9 (electronic and technological products, etc.), 40% has been claimed in Class 10 (medical instruments, etc.) and 30% for Class 5 (pharmaceuticals, etc.) and Class 7(machines, etc.). Furthermore, it speculates some classes, including Classes 5, 9, 10, 11, 20, 21, 25, 35, 36, 39, 41 and 42, are likely to reach full depletion in the near future. Based on the findings, the article offers recommendations for the USPTO/courts to address color concentration and depletion. It also calls for a reflection and reconstruction of the fundamental justification underlying trademark registration and trademark law.

AB - Trademark law across the US, EU and UK allows companies to register single colors as trademarks, thereby preventing competitors from using similar colors in the related markets. However, this law might lead to the issue of color depletion: when more single colors are registered as trademarks, fewer colors are available for new entrants. With fewer color options left, color depletion can create market entry barriers and impose anticompetitive costs on new entrants. Existing psychological and marketing research suggests that regional depletion -- color concentration -- is possible on business preferred colors. And theoretical debates have centered on whether color depletion is severe in practice. However, there is no quantitative empirical research assessing the actual severity of color concentration and depletion. This study is the first to conduct a quantitative investigation on the extent of color concentration and depletion. It innovatively uses Python program to code and analyze 858 single-color trademarks across 45 good/service classes recorded in the United States Patent and Trademark Office (USPTO). The study finds out registrations are primarily concentrated in the red hue segment and in color areas with high brightness and high saturation. Substantial depletion is estimated in certain classes: 41% of the color space has been registered in Class 9 (electronic and technological products, etc.), 40% has been claimed in Class 10 (medical instruments, etc.) and 30% for Class 5 (pharmaceuticals, etc.) and Class 7(machines, etc.). Furthermore, it speculates some classes, including Classes 5, 9, 10, 11, 20, 21, 25, 35, 36, 39, 41 and 42, are likely to reach full depletion in the near future. Based on the findings, the article offers recommendations for the USPTO/courts to address color concentration and depletion. It also calls for a reflection and reconstruction of the fundamental justification underlying trademark registration and trademark law.

KW - Trademark

KW - empirical analysis

KW - color depletion

KW - USPTO

KW - competition

UR - https://www.inta.org/resources/the-trademark-reporter/

M3 - Article

SN - 1911-2023

VL - 115

SP - 522

EP - 600

JO - The Trademark Reporter

JF - The Trademark Reporter

IS - 3

ER -