Taxi!

The question presented itself last night in my trademark class, and I've been mulling it over ever since. Can a taxi cab company register the color yellow as a color mark with the U.S. Patent and Trademark Office?

My first instinct is to say no-- while a single color used on goods may acquire trademark rights, colors that are functional are not protectable. The Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., 34 USPQ2d 1161 (1995) sheds further light on how a color mark can acquire distinctiveness and secure protection under U.S. trademark law.

From my perspective, based on Qualitex, the color yellow for taxi cabs is functional: when I am in the middle of a busy city, and I need a cab, I keep an eye out for a yellow car. Because yellow is an easy color to spot in a sea of traffic, given the low number of cars with that color (most people do not choose yellow for their own cars, and I would venture to say on a certain level it is a specialty color that most dealerships do not offer up front-- you likely have to order it) it makes hailing a cab a more efficient process.

Now, I must admit, most of my taxi experience has occurred in Washington, D.C. and New York City. But I have gotten into many taxis from different companies in these cities that were yellow, so many different companies have been using this color for as long as I can remember. While taxi cabs do come in other colors, it is the bright yellow car that catches my eye and causes me to hustle to the corner to wave the car down. The color yellow does have a value, but it does not cause me to think of any specific company in the way pink insulation makes me immediately think of Owens Corning (See In re Owens Corning Fiberglass Corp. 227 USPQ 417 (Fed. Cir. 1985)); or, how a yellow and green tractor makes me think specifically of John Deere.

Even various "taxi-related" websites use yellow-- see the link below:
http://www.worldtaximeter.com/new-york/taxi_companies

In sum, it seems the color yellow for taxi cabs is in fact functional, perhaps via accident of history, but nevertheless, it has a value to both customers and the companies that help us get around town.

For more on the history of the New York Yellow Cab, please visit:
http://www.npr.org/templates/story/story.php?storyId=11804573

For more on popular car colors in North America, please visit:
http://www2.dupont.com/Automotive/en_US/assets/downloads/colorpop2005.pdf